Howard v. Conde

Strahan, C. J. The only error complained of on this appeal is the ruling of the court below sustaining the demurrer to the new matter in the defendant’s answer; and to that our attention will be directed. The first separate defense is open to criticism, but it is not wholly without merit. It fails to allege that the cow levied upon was at the time of the levy the property of E. G. Howard, and for that reason the attempted justification as to the cow fails. Whether the garnishment by the sheriff of persons whom the plaintiff alleges were indebted to her, and the payment by them to the sheriff of the sums which they respectively admitted to be due and owing to the defendant in the execution, is any injury to the rights of the plaintiff, we need not now consider or decide, because both parties on this trial have assumed that if those persons were in fact indebted to the plaintiff in this action, she would be entitled to recover the sums they paid the sheriff, and which were applied on the execution in his hands. Upon this part of the defense the sheriff tenders an issue that these persons were indebted to E. G. Howard, the defendant in the execution; and if the parties wish to try out the right to the money in that way, it is not for the court to interfere.. The first separate defense was therefore insufficient. The other defense pleaded relates to the effect of the verdict given by a sheriff’s jury, and the execution of the undertaking provided by the code. By the verdict, only a part of the property claimed, to the value of seventy-two dollars and fifty cents, was found to be the property of the claimant; but the verdict in no manner identifies what particular property belonged to the claimant. Whether the defendant, in the execution, was found by the jury to [586] be the owner of the residue, we are not informed by the record before us; but whether he was or not, may not be very material in view of other matters stated in the second separate defense. The plaintiff, in the execution, desired to sell the property notwithstanding the verdict, and accordingly gave the undertaking required by section 289, Hill’s Code. That section makes it the duty of the sheriff, notwithstanding the verdict, to proceed to sell the property seized, in satisfaction of the execution, if the plaintiff tender to him a written undertaking, executed by two or more good and sufficient sureties, residents of the state, and' householders or freeholders therein, in double the value of the property, to the effect that he will indemnify the sheriff against all damages and costs which he may sustain in consequence of the seizure and sale of such property; and, moreover, that he will pay to the claimant of such property all damages which he may sustain in consequence of such seizure and sale. This statutory undertaking evidently has a two-fold purpose—to indemnify (1) the sheriff, and (2) the claimant; but the statute has not provided that the execution and return of the bond shall take away a claimant’s right of action for the wrongful seizure of his property. Therefore, we think that so far as the claimant is concerned, the remedy on the undertaking must be regarded as cumulative. The common law right to sue for a wrong done to one’s property, is not taken away by the execution of the undertaking, unless the statute expressly so provides. This was the rule adopted in Belkin v. Hill, 53 Mo. 492, under a statute very similar to ours in this respect. And this construction was followed in State ex rel. v. McBride, 81 Mo. 349. It was there held that, in the absence of statutory prohibition, the claimant of property levied upon by a sheriff, and as to which an indemnifying bond has been given the officer, is not restricted to his remedy on the bond, but may sue the sheriff for the trespass or conversion. The condition of the statutory [587] undertaking seems to imply as much. There is a provision in the undertaking for the indemnity of the sheriff. If he cannot be sued, and is not liable for taking the property of a stranger to his writ and applying it thereon, against what claim or damages is he indemnified? The sheriff’s right to indemnity under the bond only arises after he has paid the true owner the damages sustained for the wrongful levy. Until the sheriff has been compelled to pay damages on account of his official acts, which are entirely for the benefit of the plaintiff in the writ, he has sustained no injury, and therefore .could have no cause of action. Whether the person whose property has been unlawfully taken might sue directly on the undertaking, it is not necessary now to decide, as that case is not before us. If the sheriff is not liable to the true owner of the propei’ty when he wrongfully takes it and applies it to the payment of another’s liability, the clause in the undertaking in the sheriff’s favor would never be of any utility. No one could ever declare on that clause of the bond except the sheriff, and he only after he had been compelled to pay damages to the true owner for the wrongful taking. In some of the states the sheriff is expressly exempted from liability by positive law in such case, but we have no such statute here. In this view of the law, the court below did not err in sustaining the demurrer to the second separate defense. There being no other errors complained of, the judgment appealed from must be affirmed.