Baxter v. Ray

Dec 10, 1883

Reporters:: ,
Before:: Beck

Beck, J.

I. A constable lield five executions, issued upon as many judgments, against J. A. Baxter. Two of tbe judgments-notice of ’ claim “by tMrd party; indem-mfymg bond. were in favor of one of tbe defendants, two in favor of another, and one in favor of tbe third.’ , . The writs were levied upon certain promissory r r j notes as tbe property of the defendants in execution. Thereupon plaintiff cаused a notice to be served upon tbe constable, as prescribed in Code, § 3055, claiming tbe proрerty in tbe notes, and demanding possession thereof. There was but one notice, and it referred to and was made applicable to all tbe executions by its express terms. Thereupon tbe plaintiffs in exeсution, tbe defendants in this case, united in an ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍indemnifying bond required by Code, § 3056. This bond recites tbe five judgments, naming tbe plaintiffs in each, tbe levy of tbe executions, the notice to tbe .constable served by plaintiff, and other partiсulars. It is conditioned, as the statute requires, to pay to any claimant of tbe property tbe damages be may sustain in consequence of the seizure and sale of tbe property. Tbe action is brought upоn this bond.

II. Tbe defendants in-tbe court below, by objection to tbe introduction of tbe notice and bond in evidenсe, and by instructions THE SAME. to tbe jury asked by them, insisted that . „ , a separate cause ot action arose upоn each execution, and that there should have been a separate bond and notice aрplicable to each, instead of one applicable to all, and that there is a misjoinder of defendants and of causes of action. These objections are renewed in this court.

Tbe purpose of the provision of tbe Code above cited requiring, upon notice in writing given by the claimant of property ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍levied upon by execution, an idemnifying bond to be executed and returned with the execution, is tbe рrotection of *338tbe officer and tbe claimant of tbe property. Tbe latter, in case be establishes ownership of tbe property in himself, may recover tbe damages be lias sustained by tbe seizure and sаle of tbe property, which would ordinarily be tbe value of tbe property. When, as in this case, several executions at the same time are levied upon the property, which is sold upon tbe writs, there is not аnd cannot be successive and separate seizures and sales upon tbe separate exеcutions, but the property is seized and sold upon all the executions as one act. This is true, though tbe offiсer may make separate returns to each writ. While tbe writs are in bis bands, be acts upon all together, and not upon each separately. No possible benefit to any party could be attained by requiring separate notices and separate bonds for each execution. And no possible prejudice could have resulted to defendants by there being but one notice and one bond.

Tbe defendants, resрonding to tbe requirments of tbe law, upon the notice to tbe constable executed tbe bond, which ^tíoñoñindom-nitylng Rond estoppel: ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍joinder of parties and causes. was regarded by tbe constable and plaintiff as sufficient to authorize tbe officer to sell tbe property; for they so treated them, and defendants obtained all tbe benefits and advantages they could derive from lawful papers of -the kind. Tbe notice and bond were by tbe defendants regarded as sufficient, and, by means of these instruments, they caused plaintiff’s property to be sold upon tbe executions; they are estopped now to insist that tbe instruments are insufficiеnt.

We are of the opinion that defendants are in no different or worse position than they would have bеen in bad there been a notice and bond for each execution, tbe bonds in that case being exеcuted by all of tbe defendants. In an action on one of them, tbe plaintiff could have recovered the value of tbe property against all of tbe defendants, and, having so recovered, be could not recover upon the other bonds.

It cannot be said that there is a misjoinder of causes of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍action or of defendants. The defendants are bound by tbe *339bond; upon it plaintiff lias one canse of action аgainst tbe defendants jointly.

Tbe rulings of tbe court below upon tbe admission of testimony and upon tbe instructions are in barmony with tbe views we liave expressed.

III. After tbe evidence was submitted, tbe court, against defendants’ ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍objection, directed and required tbe argument of 3. practice : jutigeciuring jury. counsel to be made to the jury when tbe judge was not presеnt, but was conducting other business of the court m a separate room. The circumstances creating оccasion for this course are not shown by the record. “While, doubtless, tbe judge should have been present, unless bis absence was required by sufficient cause, we would not disturb tbe judgment, unless prejudice resulting from Ms absence is shown or could be inferred. But there is no claim of or attempt to show prejudice, and no ground to infer thаt any resulted from bis action to defendants.

We have held that a judge may properly be absent during the prоgress of a trial. Hall v. Wolff et al., 61 Iowa, 559.

Tbe foregoing discussion disposes of all questions presented in argument by defendants’ counsel. In our opinion tbe judgment of tbe circuit court ought to be

Affirmed.