McAllister v. Clopton

Chalmers, J., delivered the opinion of the court. The judgment for damages against the constable in the re-plevin suit did not preclude’ a recovery against the obligors on the indemnifying-bond, though actual payment of such damages would have done so. The court had jurisdiction to award damages in that suit, and if none had been there awarded none could have afterwards been recovered in another proceeding. But the obligors on the indemnifying-bond were [211] liable, by its terms, for whatever damages might be sustained, whether awarded in the replevin suit or in a direct action against themselves. The constable might, in the replevin, have shielded himself from liability by filing or pleading the bond, as he was authorized to do by the statute (Code 1871, sect. 845), but his failure to do this in nowise affected the liability of those who, by the bond, had expressly made themselves liable. As the case stands the constable has become bound -by the judgment which he has suffered to go against him, and the obligors on the indemnifying-boud are liable because they so contracted. The failure of the officer to obtain that release to which he was entitled cannot deprive the party aggrieved by the improper levy of that indemnity which the law provides and. which the defendants here voluntarily assumed. The case of Shattuck v. Miller, 50 Miss. 386, relied on by appellees, does not affect the result. In that case it was held that the failure of a claimant to obtain a judgment for damages upon the trial of the claimant’s issue did not preclude his subsequent recovery of them in an action upon an indemuifying-bond, and this for the reason that damages are not recoverable upon the trial of a claimant’s issue, but it does not follow from this, as seems to be supposed b}r counsel, that if damages were recoverable upon such an issue, and were actually awarded, a subsequent suit could not be brought on the indemnifying-bond to compel their payment. In replevin suits damages are recoverable. Therefore, if in such a suit the jury refuse to award them, the verdict is a bar to any other proceeding which seeks to obtain them; but if, on the other hand, they are awarded in the replevin suit, but are not collected under that judgment, the obligors on the indemnifying-bond can be made to respond by a direct action against them, just as is here attempted. Judgment reversed, and new trial awarded.