Totten v. Henry

• Decision Date: 01 April 1899
• Citation: 33 S.E. 119,46 W.Va. 232
• Parties: TOTTEN. v. HENRY.
• Court: West Virginia Supreme Court

33 S.E. 119

46 W.Va. 232

TOTTEN.

v.HENRY.

Supreme Court of Appeals of West Virginia.

April 1, 1899.

Attachment — Rights of Claimant — Liability on Bond.

A claimant of property seized or sold under an attachment may recover damages in an action upon the attachment bond without having in the first instance recovered damages in an independent suit against the plaintiff in the attachment.

(Syllabus by the Court.)

Error to circuit court, McDowell county; Joseph M. Sanders, Judge.

Action by Myer Henry against H. P. Tot-ten. Judgment for plaintiff. Defendant brings error. Affirmed.

Flournoy, Price & Smith and G. W. S. Musgrave, for plaintiff in error.

Johnston & Hale, for defendant in error.

BRANNON, J. Epstein brought a chancery suit in McDowell county against Bloom and others, and sued out an attachment against the estate of Bloom, giving an attachment bond. The attachment was levied on a stock of goods in the possession of Henry, who claimed the goods as his own, denying that they belonged to Bloom; and upon the trial of the right of property Henry sustained his claim to the goods, and then brought an action upon the attachment bond in said county against Epstein and his surety to recover damages for the seizure of the goods. Epstein was not served with process, and the suit abated as to him, but Totten, the surety in the bond, was served with process, but he not appearing to defend, a judgment by default was rendered against him. Later Totten, after notice to Henry, made a motion before said court to reverse and set aside the judgment against him, but the court overruled and dismissed his motion, and from the judgment of dismissal Totten obtained this writ of error. The ground upon which Totten asked the circuit court to reverse said judgment is that the declaration in the action shows no cause of action, inasmuch as it does not aver that, before action was brought on the attachment bond, Henry had recovered judgment in an independent action against Epstein for damages for the seizure of his property under said attachment. Counsel for Totten contends that a claimant of property seized under an attachment, who is not a party to it cannot sue for damages suffered by him from such seizure until he shall have first brought an action against the plaintiff in the attachment, recovered judgment, and the attachment plaintiff has failed to pay it. When the statute provided that the bond should be conditioned to "pay all costs and damages which may be awarded against him [plaintiff], or sustained by any person by reason of the suing out of the attachment, " without the additional provision now found in the statute (Code, c. 106, § 6) that the bond should also provide "to pay any claimant of any property seized or sold under or by virtue of said attachment all damages which he may recover in consequence of such seizure or sale, " it was held that only the defendant in the attachment could sue upon the bond, and that a third party whose property was wrongly taken had no redress upon the bond Davis v. Com., 13 Grat. 139. Then the legislature made the addition above quoted. That addition is an independent clause, not at all related to those made for the benefit of the attachment debtor, and we must give this clause a construction and effect suitable to the condition and wants of this third party's case. It is said he must first, in an independent suit recover damages against the party suing out the attachment, before he can sue on this bond. That would say that in cases where by law he can recover against the plaintiff in the attachment he must first do so. Why make him bring two suits when the matter may as well be tried in an actionon the bond? But what is the injured person's relief in those cases where the law does not allow him to recover damages from the attachment plaintiff? The plaintiff in an attachment, where there is jurisdiction, is liable to damages for the officer's seizure of a stranger's property, if he directed such levy; but he is not liable for merely suing out the attachment, though without sufficient grounds, except he did so maliciously, —I mean under the common law. Id. 142; Ogg v. Murdock, 25 W. Va. 139; Cooley, Torts, 548; 1 Shinn, Attachm. § 362. Where, then, is a person whose property is wrongfully seized by an officer under an attachment, not instigated by the plaintiff, to get any redress, if the construction sought to be put upon this clause of the bond be granted? He cannot sue the officer, as the Code says that when this bond is given the officer shall not be sued. He could be made to answer at common law, and, as he acts colore officii (by color of office), his bond would afford redress to the injured third party, if he could be sued, as he could at common law. Lucas v. Locke, 11 W. Va. 81. Yet, the obligors in this bond, having by it taken from Henry his common-law action against the sheriff, leave him none in place of it, if the bond does not answer. Ought not the bond give him as much remedy as the common law gave? The statute intended to take the burden off the sheriff, and does this not tell ...