Hoskins v. J. M. Robinson & Co.

JUDGE GUFFY delivered the opinion of the court. It appears from the petition in this action that the appellee, Jos. Lewis, was the sheriff of Olay county, and appellee, Morgan, was his deputy, and that by virtue of two' executions issued to the sheriff of Olay county against L. S. Holcombe that the said Lewis and Morgan levied upon a lot of property, which was in his possession at time of suit, but which in fact, as alleged, belonged to the appellant, Hoskins, and the object of the suit was to recover possession of the property so seized by tire sheriff, it then being in his possession. The sheriff answered, and, besides denying plaintiff’s title, [669] alleged that before the levy and seizure of the property under the executions aforesaid that the plaintiffs had executed indemnifying bonds, as provided in- the Code of Practice, which bonds had been duly returned to the proper -office before the institution of this action. The plaintiffs-in the executions were also permitted to be made parties- and relied upon substantially the same defenses as those relied upon by the sheriff. - A demurrer was filed to the second and third paragraphs-of the answers of plaintiffs in the execution, and motion made to strike out of the sheriff's answer the second and third paragraphs thereof. It seems that the sheriff having failed to verify his answer, the motion was sustained. The second and third paragraphs of his answer were stricken out, and the demurrer overruled as to the answers of plaintiffs -in the execution, but the court- further held that the demurrer reached back to the petition, and adjudged the petition insufficient, and plaintiff failing to amend, his petition was dismissed, and from that judgment he prosecutes- this appeal. The principal question involved is whether the owner of property can maintain an action iof replevin against the sheriff who has possession thereof by virtue of the execution issued against some one other than the plaintiff, bond of indemnity having been first given and d-ue return made-thereof. The contention of appellee seems to be that section 645-of the Civil Code is the only provision or law under which the claimant of property can prevent a sale thereof under an execution issued against a third party, but we- can not [670] concur in that view. We think that provision of the Code was intended to facilitate the recovery or to prevent the seizure and sale of the property of a party against whom no execution had issued, and that it was by no means intended to restrict his rights nor to. bar him from any other remedy that he would otherwise be entitled to’ resort to. The appellee earnestly insists that section 643 of the Code of Practice bars the right of appellant to prosecute this suit. The section reads as follows- “The claimant or purchaser of any property, for the seizure or sale of which an indemnifying bond has been taken and returned by the officer, shall be barred of any action aga-inst the officer levying on the property if the surety in the bond was good when taken, and such claimant or purchaser may maintain an. action upon the bond and recover such damages as he may be entitled to.”' This section refers only to the damages that such claimant would be entitled to resulting from such seizure or sale, and was not intended to bar the right to maintain an action of claim and delivery. Indeed the legislature could not divest a party of title to property by any such provision. The object of the section was to relieve the officer in such case from liability to be made to pay the value of the property so sold and the damages that the owner might sustain thereby when the sheriff had taken and returned an indemnifying bond as required by law. * It will be seen from section 641 of the Code that one of the covenants of such indemnifying bonds is that tb^ obligors therein will indemnify the sheriff against the damages which he might sustain in consequence of the [671] seizure or sale of the property. If no suit can be maintained against the sheriff by any claimant of property, it is ■difficult to see how he could be damaged by the seizure or sale, and that provision of the bond would be useless and meaningless if, under no state of ease, suit can be maintained against tbe 'sheriff with reference to said property. We have examined the decisions referred to by appellee and fail to see that any of them sustain his contention. 'The question involved in the case at bar was not involved .in any of the decisions to which we have been referred, and the (expressions used in said decisions, with regard to the •immunity of the sheriff as to damages, is in reference to such damages as we have already enumerated herein. It will be seen that the sole object of this suit is to recover the property levied on, and then in the possession of the defendants, Lewis and Morgan, and no judgment is asked against them for anything except for the property and the costs. From the averments in the petition the appellant was then the owner of the goods, and the defendants, Lewis and Morgan, were in the possession of them, and that without right, according to the averments of the petition, and if the averments were true he was entitled to an order of delivery and a judgment for the property levied on, hence the court erred in overruling the demurrer and dismissing ■appellant’s petition. For the reasons indicated the judgment is reversed and the cause remanded, with directions to sustain the demurrer to all that part of the answers filed except such parts as deny the ownership or title of appellant, and for proceedings .consistent with this opinion.