248 S.W. 89 | Tex. App. | 1922
Craven recovered judgment against Simms for title and possession of said automobile. A writ of possession was issued and placed in the hands of Buchanan, commanding him to deliver possession of said automobile to Craven, "as against said Guy Simms and all persons claiming same under or through him since the institution of this suit."
When said writ was received, Stanford was in possession of the automobile, having received such possession from Buchanan as hereinbefore stated. He was claiming same, not under Simms, but as having been stolen from him by Simms.
Buchanan demanded and received from F. A. Craven an indemnity bond. F. A. Craven gave such bond, with A. R. Craven and Louis Lipshitz, appellants herein, as sureties, which was as follows:
"F. A. Craven v. Guy Simms. No. 11654. Whereas, a writ of possession has been is sued in an action pending in the county court in and for the county of McLennan, state of Texas, in favor of the above-named plaintiff, against the said Guy Simms as defendant, which by the direction of the plaintiff has been levied by Bob Buchanan, sheriff of McLennan county, upon certain goods and chattels, viz.: One five-passenger Ford automobile, original state license No. 394588, said number having been changed and the present number as follows: Engine No. 3745261, or said number is 3745267, and the present license number of 431532: Now, therefore, in consideration that the said Bob Buchanan, as sheriff, has levied (or shall levy) said writ of possession upon the above-described property, we, F. A. Craven, as principal, and the other signers hereto as sureties, acknowledge ourselves bound to pay to Bob Buchanan, sheriff as aforesaid, the sum of one thousand 00/100 dollars, conditioned that the above bound F. A. Craven shall well and sufficiently indemnify, save and keep harmless the said Bob Buchanan, sheriff as aforesaid, from all costs, damages and suits that he may incur, or become liable to, in consequence of the levy of the said writ of possession, and shall pay off, cancel and discharge all judgments, damages and costs that may be rendered against the said Bob Buchanan, as sheriff, by reason of said levy.
"Witness our hands, this 2d day of Nov., A.D. 1920. [Signed] F. A. Craven.
"A. R. Craven.
"Louis Lipshitz."
"The foregoing bond approved, this 2d day of Nov., A.D. 1920. Bob Buchanan, Sheriff, McLennan County, Texas, by [Signed] I. M. Wood, Deputy."
Buchanan executed said writ by taking possession of the automobile and delivering the same to F. A. Craven. Thereafter Stanford brought suit against Craven and Buchanan for the conversion of said automobile, and recovered judgment against them, jointly and severally, for the sum of $600, the alleged value of the automobile. This judgment has not been paid in whole or in part. No appeal was taken from either of said judgments.
The appellants, who were sureties on Buchanan's indemnity bond, were not parties to this suit, nor were they legally notified of the same by Buchanan, nor were they requested by him to defend same.
After Stanford recovered judgment against F. A. Craven and Bob Buchanan, Buchanan, the appellee herein, brought suit against the principal and sureties on said indemnity bond, and recovered judgment against them for $600, with interest thereon from November 3, 1920, and $46.45, costs in the suit of Stanford v. F. A. Craven and Bob Buchanan, and all costs in this suit.
This appeal is prosecuted by said bondsmen from the judgment last above mentioned.
Upon the trial of this cause, no evidence was introduced as to the value of the *91 automobile, nor as to Stanford's ownership thereof. The judgment recites as a basis therefor:
"That said judgment as rendered in said cause No. 11775 (Stanford v. F. A. Craven and Bob Buchanan) is a valid outstanding judgment, and has not been paid."
(1) The indemnity bond executed by appellants is void, for the reason that the appellee, sheriff of McLennan county, having received from a court of competent jurisdiction a writ of possession issued on a valid judgment, commanding him to do what he did do, namely, seize and turn over to F. A. Craven the automobile described in said writ, he was bound to obey said order, and had no legal right to demand an indemnity bond of said Craven.
(2) That if said writ did not authorize the appellee Buchanan to seize the automobile, he had no legal right to require indemnity against the consequences of his illegal act.
(3) That the judgment in the case of Stanford v. Buchanan was not binding on appellants, for the reason that they were not parties to said suit, and were not legally notified as to its pendency.
It is true, as a general proposition, that an officer is bound to obey the legal orders of a court, and is not entitled to be indemnified for so doing.
Without entering into a discussion of this proposition, it is sufficient to say that in the instant case the writ of possession was against Simms and those claiming under him, and did not authorize the sheriff to take the automobile from the owner of same, who was not a party to the suit of Craven v. Simms. The sheriff found the automobile in the possession of Stanford, who claimed to be the owner thereof by title other than under Simms. Such claim may or may not have been well founded. To seize the automobile in the possession of Stanford was to commit a trespass, if it belonged to Stanford. Cabell v. Shoe Co.,
As to the second proposition, supra, the writ described the particular automobile seized by the sheriff, and authorized him to seize the same, if Stanford was not lawfully in possession thereof. As above stated, the sheriff was not required to adjudicate this issue, but had the right to require Craven to assume such responsibility by giving an indemnity bond.
It is urged by appellants that the sheriff committed a wrong in delivering possession of the automobile to Stanford, but for which it would have remained in his possession, and he could have executed the writ of possession without committing a trespass against Stanford; and that he should not be permitted to take advantage of his own wrong.
Appellee Buchanan committed no legal wrong against Craven in delivering the automobile to Stanford. He was not holding the same under any legal process. Had he refused to deliver it to Stanford, if Stanford could have shown, as he did in his suit against Craven, that he was the owner of the machine, appellee would have been liable to Stanford for conversion. If Craven wanted appellee to hold the automobile subject to the judgment to be rendered in his suit against Simms, he could have required appellee to do so, unless replevied, by suing out a writ of sequestration in that cause.
As to the third contention, supra, it is true, as a general proposition, that judgments are binding only upon the parties thereto and their privies. A seeming exception is where a party has executed a bond as surety in a pending suit, such as an attachment, injunction, sequestration, or replevy bond, he need not be made a formal party, or notified to defend, in order for a judgment on such bond to be binding on him. This is not a real exception to the rule stated, for the reason that by voluntarily executing such bond the surety makes himself a party to the proceeding, and is in privity with his principal.
An exception to the general rule that only parties and their privies are bound by a judgment is where a surety expressly covenants against the rendition of a judgment against his principal. In such case his covenant is broken and his liability is established when such judgment is entered, and the same thereupon becomes res adjudicata as to him. Browne v. French,
In Browne v. French, supra, Chief Justice Fisher said:
"The general rule upon this subject may be stated that, when it appears from the terms of the obligation that the surety has contracted to become bound by a judgment that has been or may be rendered in an action against his principal, it is conclusive against him, although he was not a party to the suit in which the judgment was obtained; but in an undertaking, general in character, such as the bond sued upon in this case, the judgment obtained against the principal therein only creates a prima facie liability against the surety who was not made a party or given an opportunity to defend the suit in which the judgment was obtained."
Thus, in the instant case, had the undertaking of the indemnitors been to hold the sheriff harmless against any damages for which he might become liable by reason of the execution of the writ, this would have meant such damages as might be legally ascertained, and the sureties would not be bound by a judgment establishing such liability to which they were not parties, or of which they had not been notified to appear and defend. But here, in addition to a general undertaking to hold the sheriff harmless against the consequence of his executing the writ, the sureties specifically bound themselves, "to pay off, cancel, and discharge all judgments, damages and costs that may be rendered against the said Bob Buchanan, as sheriff, by reason of said levy." As a man binds himself, so shall he be bound, is an ancient maxim of law.
In Conner v. Reeves, supra, the bond was similar to the one here under consideration. Mr. Justice Andrews, in delivering the opinion of the court, said:
"The undertaking was not against damage merely but was an indemnity against liability by judgment as well (Rockfeller v. Donnelly, 8 Cow. 623, 628; Chase v. Hinmen, 8 Wend. 452). * * * When the covenant is one of indemnity against the recovery of a judgment, the cause of action on the covenant is complete the moment the judgment is recovered, and an action for damages may be immediately maintained thereon, measured by the amount of the judgment, and this although the judgment has not been paid by the covenantee, and although the covenantor was not a party, or had no notice of the former action. * * * `Always, however, saving the right, as the law must in every case where the suit is between third persons, to contest the proceeding on the ground of fraudulent collusion, for the purpose of charging the surety.'" 103 N.Y. pp. 529, 530, 9 N.E. 440.
We have examined the other assignments of error herein and overrule them. We do not deem them of sufficient merit or importance to justify a further extension of this opinion by commenting thereon.
Finding no error of record, the judgment of the trial court is affirmed.
Affirmed.