Burns v. George

McCLELLAN, J. The complaint avers that the [506] plaintiff was the owner of the judgment in the case of Lay et al. v. James Young, “at the time of the issuance of the execution thereon, and has been ever since then the owner of said judgment.” She is “the person aggrieved” by the alleged misfeasance of the sheriff in respect of making the money on the execution, and entitled, to sue on his official bond in her own name under section 2575 of the Code (1886). It was sufficient for plaintiff to aver her ownership of the judgment in general terms, leaving it to the evidence upon proper issue made to show how she acquired it, and, if essential, that it was assigned to her on the records of the court. The complaint alleges that she “was put to the expense of court costs and attorney’s fees” in defending against the writ of supersedeas sued out by the defendant in execution, etc., etc., and claims “the sum of two hundred and fifty dollars as special damages on account of said court costs and attorney’s fees, the damage of plaintiff as above stated.” We construe these averments to mean that plaintiff had incurred, or incurred and paid the sum of two hundred and fifty dollars costs and fees in the supersedeas proceeding; and so hold that the claim for these special damages is sufficiently stated. The necessity for this expenditure resulted naturally and proximately from the facts averred that the sheriff returned what purported to be a bond for the forthcoming of the property levied on, that an execution was issued upon said bond, and that supersedeas was prosecuted by the putative obligors on said bond on the ground that they did not execute the said bond. On this state of case, the plaintiff in execution without fault on her part was justified in and put to the necessity of defending the execution, and she is entitled to the expenses she incurred in that behalf. The other points presented by this record were correctly decided by the court below — so obviously so that they.requ.ire no discussion. Affirmed.