Schilling v. Black

Opinion by Strang, C.: In an action by Moore & Almond against one Samuel Black, a horse in the possession of said Samuel Black was attached, and afterwards sold by' the constable as the property of Black. After the sale, William Black, who was the father of Samuel Black, claimed the horse, and commenced the action against A. C. Schilling, constable, and A. Van Fassen and R. D. Faught, sureties on his official bond, alleging a breach of the condition thereof in seizing and selling said horse in a proceeding against Samuel Black, to satisfy a debt of said Samuel Black. The defendants in the court below demurred to the petition of the plaintiff in that court, and, as grounds therefor, alleged: 1. A defect of parties, both plaintiff and defendant. 2. That causes of action were improperly joined. 3. That the petition does not state facts sufficient to constitute a cause of action. Demurrer overruled. [556] In the argument of the case in the brief of the plaintiffs in error, there is no claim of any defect of parties plaintiff but it is alleged that there exists a defect of parties defendant, in this, that the sureties on the constable’s official bond, who are joined with him in the action, should not have been made parties thereto; that the action should first have been brought against the constable individually, and, if satisfaction could not be had against him, that proceedings might then be instituted against the sureties on his bond. The bond of the constable was joint and several, and the action was properly instituted against all the obligors thereon, for a breach of its condition. Jenks v. School District, 18 Kas. 356; Swerdsfeger v. The State, 21 id. 475. In the second place, complaint is made that causes of action are improperly joined, to wit, a cause of action against the constable with a cause of action against the sureties. We think a cause of action against a constable for a breach of the condition of his official bond may be joined with a cause of action against the sureties on said bond for such breach. In Hoye v. Raymond, 25 Kas. 665, the case cited in defendants’ brief, Mr. Justice Valentine says: “ We also think that the constable and his sureties might be joined in one action upon the constable’s bond.” In this case the cause of action is the alleged breach of a joint as well as several obligation, and there would seem to be not only no reason, under our code, why the constable and the sureties on his official bond should not be joined in an action for a breach thereof, but that the better practice would suggest such joinder. . The argument that the petition does not state a cause of action is based upon the idea that proceedings cannot be had against the sureties until the remedy against the constable has been exhausted, and that, as the petition does not show proceedings first had against the constable, it states no cause of action. We think the premises of this argument wrong, and, therefore, the conclusion is untenable. The court did not err in overruling the demurrer to the petition. The de [557] murrer thus disposed of in the court below, an answer was filed containing a general denial and three special defenses. To each of the special defenses a demurrer was interposed by the plaintiff below. This demurrer was sustained as to all of such defenses, the court holding that the matter set out therein as matter of estoppel did not amount to an estoppel, and, therefore, constituted no defense. The sustaining of this demurrer is alleged as error, and, as we think, presents the only important question in the case. It is alleged that William Black, the plaintiff below, was present in the court when the case of Moore & Almond against his son Samuel Black was tried; that he knew that the horse which he after-wards claimed as his own had been attached in the proceeding against his son; that judgment had gone against his son in that proceeding, and that the attachment proceeding was affirmed by the court, and au order for the sale of the horse issued to the constable, one of the defendants below, and that the horse was duly advertised and sold on said order of sale; that he was also present at the sale and saw the horse sold, without, at any time during the trial, before or at the sale, giving any notice to the officer, or any one else, of his .claim to the horse, or making any demand upon the officer therefor. And it is claimed that such conduct on the part of the defendant herein estops him from subsequently claiming the horse as his own. Did such conduct on the part of the defendant amount to an estoppel? When an officer wrongfully seizes the property of one person upon process against another, is the latter required to make any claim of property before commencing proceedings for the recovery? May he not, with full knowledge of each step taken in the proceeding under which his property is seized, remain silent until the last act therein is closed, and then commence pro-' ceedings for its recovery, or the recovery of its value? Whatever the rule may be in an action by the owner against an innocent purchaser of property, which the former has seen the latter purchase at judicial sale and pay for, without any notice of claim to the property by the former, we do not think [558] that, in an action by the owner against an officer who has wrongfully seized and sold his property, the silence of the former, though aware of the seizure and sale, when made, will operate as an estoppel to his recovery. The seizure being wrongful, the silence of the owner forfeited none of his rights, nor did it cure the wrong of the officer. In McKinney v. Purcell, 28 Kas. 452, this court said: “The original seizure was wrong. Defendant did not assent to it. Her silence during the continuance of the attachment, and her failure to object to any of the proceedings of the plaintiffs, give them no greater rights than they had in the first instance, and she waived none of her rights.” It is recommended that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.