Walker v. Wonderlick

• Decision Date: 25 November 1891
• Parties: WALKER v. WONDERLICK ET AL.
• Court: Nebraska Supreme Court

33 Neb. 504

50 N.W. 445

WALKER

v.WONDERLICK ET AL.

Supreme Court of Nebraska.

Nov. 25, 1891.

Syllabus by the Court.

1. Where an officer, with process against the property of A., seizes by virtue thereof the property of B., he is guilty of official misconduct, for which he and his sureties are liable on his official bond.

2. Where the goods of B. were wrongfully levied upon and sold on an execution and attachment against A., and the plaintiffs in those actions directed the levy and sale, and indemnified the officer, they are jointly liable with him and his sureties for the wrong.

Error to district court, Gage county; APPELGET, Judge. Reversed.

Action by Fannie C. Walker against E. A. Wonderlick and others for wrongfully levying on her property. A demurrer by defendants was overruled as to defendant Wonderlick, and sustained as to his codefendants. Plaintiff brings error.A. Hardy, for plaintiff in error.

J. A. Vanorsdel and T. F. Burke, for defendants in error.

MAXWELL, J.

The plaintiff brought an action in the district court of Gage county against the defendants. Her petition is as follows: “(1) That prior to the 5th day of December, 1889, the defendant E. Wonderlick had been duly chosen constable in and for Blue Springs township, in Gage county, Nebraska, and on the 8th day of January, 1890, filed his official bond, duly approved by the board of supervisors of said county, with the county clerk of said county, with the defendants Lewis Bonigasser, George Poffenbarger, and George B. Johnson as his sureties thereon. A duly-certified copy of his said bond is hereto annexed, marked ‘A,’ and made a part hereof. Said Wonderlick then duly qualified as, and became, a constable in and for said county, and at the time hereinafter mentioned was an acting constable in and for said county. That thereafter, and on and prior to the 18th day of February, 1890, this plaintiff owned in her own right, and was in possession of, a stock of groceries, and the fixtures necessary to carrying on a grocery store and the grocery business, the same then being in a grocery store in the city of Blue Springs aforesaid. That the said stock of groceries and fixtures was then of the value of $511.37. That the annexed, marked ‘B,’ is a true and correct inventory of said goods, and the values set opposite the several items is a true and correct value of the same at that time. That on said 18th day of February the plaintiff was engaged in and carrying on the business of a retail grocer with said goods in said store in Blue Springs aforesaid, and had a fair trade in her business. That on said 18th day of February the defendant Wonderlick, acting by virtue of his office as such constable, wrongfully seized and took into his possession all of the said goods and fixtures of the plaintiff, under an order of attachment in favor of said Blue Springs Bank, and against one S. T. Walker, and under an execution in favor of said Black Bros., said defendant then well knowing that said goods belonged to this plaintiff, and the execution being against S. T. Walker, and then wrongfully closed the plaintiff's store, and destroyed her business, and converted all of said goods to this defendant's use, except $250.04 worth thereof at the prices mentioned in said Exhibit B, which was on the 11th day of March, 1890, returned to the plaintiff. That by reason thereof the plaintiff has been damaged in the sum of $261.33, the value of said goods so taken and not returned, and in the further sum of $250.00 by reason of the breaking up and destroying her business and her business credit. (2) For a second cause of action, the plaintiff alleges that on and prior to the 18th day of February, 1890, this plaintiff owned in her own right, and was in the possession of, a stock of groceries, and fixtures necessary to carrying on a grocery store and the grocery business; the same then being in a grocery store in the city of Blue Springs aforesaid. That said stock of groceries and fixtures was then of the value of $511.37. That the annexed, marked ‘B,’ is atrue and correct inventory of said goods,...