De Witt v. United States Fidelity & Guaranty Co.

OPINION OF THE COURT. HANNA, J. (after' stating the facts as above.) — The first assignment of error is that the complaint does not state facts sufficient to constitute a cause of action. Appellant, in support of this assignment of error, makes fhree contentions, the first being that the complaint did not proceed upon a definite and distinct theory, citing Gallegos v. Sandoval, 15 N. M. 216, 106 Pac. 373. The action, it is pointed out, is predicated upon the indemnity bond given by Hattie Mills as principal, and the appellant as suret}r, which is conditioned that said obligation shall save harmless the said C. H. Hannum, the sheriff making the levy, from all damages, costs, and expenses which he might incur by reason of levying the writ of attachment upon the property described in the bond, or by holding the same by virtue of said writ of attachment, appellant’s contention being that appellee has mistaken her remedy in not electing to sue in trespass, rather than upon the indemnity bond set out in her complaint, and that she is precluded from suing upon the indemnity bond because there is no privity of contract between her and the surety company furnishing the indemnity bond, which contention is set out as the second ground of attack under this assignment. It is also further urged by appellant that the indemnity bond was given for the benefit of the sheriff only, who alone can sue thereupon, which is but another way of stating that there is no privity of contract between the surety company and the appellee. These several grounds of objection, which can be considered together, will dispose of this ease, unless a right of action is given by our statute providing that: “Any person interested in any bond by virtue of the attachment and replevin laws, may maintain suit thereon without any assignment by the officer to whom the same is given.” Subsection 222, § 2685, C. L. 1897, as amended by section 1, c. 107, Laws 1907. In this connection it is seriously contended by appellant that this statute can only be held to apply to attachment or replevin bonds, and cannot be considered as having anything to do with or any application to an indemnity bond, such as the one here sued upon. With this contention we agree. It is to be conceded that our statute does not confer upon a sheriff the right to demand an indemnity bond. But it has been held that a sheriff is entitled to require indemnity where he has reason to believe that there is doubt as to the title of property, which he is requested to seize under an attachment, or that a controversy may arise in relation to such property. Smith v. Cicotte, 11 Mich. 383; Waples on Attachment, 148; Drake on Attachment, § 189. This is said by an eminent court to be the rule, even where there is no express statutory authority therefor, the common law giving the right to require the indemnity. Chamberlain v. Beller, 18 N. Y. 118. See, also, Porter v. Stapp, 6 Colo. 32; Mihalobitch v. Barlass, 36 Neb. 491, 54 N. W. 826; Shriver v. Harbaugh, 37 Pa. 399. The indemnity bond, however, even under this view of the matter, does not arise or have existence by virtue of the attachment statute, and the right of action cannot, therefore, exist by virtue of the act of 1907, referred to. Our conclusion in this respect necessitates a reversal of the judgment of the trial court in this cause; and it is so ordered. Roberts, C. J., and Parker, J., concur.