Thomas v. Markmann

• Decision Date: 06 February 1895
• Citation: 43 Neb. 823,62 N.W. 206
• Parties: THOMAS v. MARKMANN.
• Court: Nebraska Supreme Court

43 Neb. 823

62 N.W. 206

THOMAS

v.MARKMANN.

Supreme Court of Nebraska.

Feb. 6, 1895.

Syllabus by the Court.

1. Where a constable, with a process against the property of one person, seizes, by virtue thereof, the property of another, he is guilty of official misconduct, for which he and his sureties are liable in an action on his official bond. Turner v. Killian, 12 N. W. 101, 12 Neb. 580, followed and reaffirmed.

2. Where an officer holding an execution issued on a judgment against A., by virtue of such execution, seizes the property of B., and the latter recovers a judgment against such officer for the value of the property seized, then, in a suit by B. against such officer and the sureties on his official bond to recover the amount of the judgment, such judgment is conclusive evidence against the officer and his sureties as to B.'s ownership of the property at the time it was seized by the officer, the amount of the damages and costs sustained by B. by reason thereof, in the absence of a showing that the court has no jurisdiction to pronounce the judgment, or that it was procured by fraud or collusion. Pasewalk v. Bollman, 45 N. W. 780, 29 Neb. 519, reaffirmed.

3. In such suit against an officer and the sureties on his bond, the answer of the sureties alleged “that said judgment was procured by fraud, misrepresentation, and contrary to law.” Held a mere conclusion.

Error to district court, Douglas county; Keysor, Judge.

Action by Anna Markmann against John Thomas and others. Judgment for plaintiff. Defendant Thomas brings error. Affirmed.J. L. Kaley, I. C. Bachelor, and W. A. Redick, for plaintiff in error.

A. C. Read, H. C. Hitt, and J. S. Miller, for defendant in error.

RAGAN, C.

On the 7th day of January, 1890, before a justice of the peace of Douglas county, one Tincert recovered a judgment against one William Markmann for $13.57. January 27th an execution was issued on this judgment, and delivered to a constable named Farquhar, who seized a gray mare and some harness in the possession of said Markmann, and as his property, for the satisfaction of such executing. On the 4th of February, 1890, Markmann replevied from the constable the mare and harness; and on the 7th of February the replevin suit was tried to a justice of the peace, who found the issues in favor of Markmann, and rendered a judgment in his favor. No appeal or proceeding in error was prosecuted from this judgment; and on the 26th of February the constable Farquhar made return of the execution in his hands to the justice who issued it, stating in the return that he had seized the mare and harness before mentioned to satisfy the execution, but that such property had been taken from his possession by writ of replevin, and that he therefore returned the writ of execution unsatisfied. March 5, 1890, the justice before whom the judgment in favor of Tincert was rendered issued another execution on such judgment, and delivered it to said constable Farquhar for service; and he again seized the mare and harness to satisfy such execution. On the 6th of March, Mrs. Anna Markmann brought a suit in replevin for the mare and harness taken by the constable; and on March 8th the summons in the replevin suit was returned as having been duly served on the constable, but that the officer serving it was unable to get possession of the property called for in the replevin summons, because Farquhar had sent the property into the state of Iowa. March 10th the replevin action proceeded as one for damages against the constable Farquhar; and the justice found that Anna Markmann, at the commencement of the replevin suit, was the owner and entitled to the immediate possession of the mare and harness levied upon by Farquhar; found the value of the mare and harness to be $175; that Mrs. Markmann had sustained damages in the sum of $25; and thereupon rendered judgment against the constable Farquhar for $200, and costs. No appeal or proceeding in error was taken from this judgment. On the 20th of March the constable Farquhar returned his execution to the justice who issued it, stating in his return that he had seized the gray mare and harness already mentioned, had sold it at public auction, and had satisfied the execution. March 11, 1890, Mrs. Markmann brought another replevin suit, before another justice, against Farquhar, to obtain possession of the mare and harness, but this suit was dismissed on the same day it was brought.

The present action was brought by Mrs. Markmann against David P. Farquhar, the above-mentioned constable, and John Thomas and Edward Brennan, the sureties on his official bond as such constable. The petition set out at length the election of Farquhar as constable; that he accepted the office, and qualified for it by giving a bond; and that the defendants Thomas and Brennan were his sureties. The petition then recited the recovery of the judgment for $13.57 by Tincert against William Markmann; the issuing of an execution on said judgment, and the taking of the gray mare and harness by the constable for the payment of said judgment; that Mrs. Markmann, at the time of the seizing of said gray mare and harness, was the owner of it, and so notified the constable; the bringing by her against Farquhar of the replevin action before the justice of the peace; the trial of said action, and the judgment pronounced therein; that an execution had been issued on said judgment, and returned wholly unsatisfied; that Farquhar was insolvent; and prayed judgment against all the defendants for the amount of the judgment, with interest and costs,...