70 Mo. 221 | Mo. | 1879
This suit was originally brought in the circuit court of Daviess county, and subsequently removed by change of venue to the circuit court of Granly county, where the same was tried at the January term, 1876, thereof. The petition alleges substantially that on the 22nd day of February, 1872, and long prior thereto, one George W. Lumpkin was the absolute owner and in possession of certain - goods, wares and. merchandise therein described ;
The answer of defendants denies that on the 22nd day of February, 1872, or at any other time, the said George
There are only two points relied upon in the brief of counsel for the reversal of the judgment, the first of which is the refusal of the court to give the following instructions asked by defendants, viz : 5. “ If, at the .time the goods in question were seized by Sheriff Flint, William I. Lump-kin was in the exclusive possession of the same, or any part thereof, and said goods were so mixed and intermingled with the goods of said George W. Lumpkin (if any he had) as.not to be distinguishable therefrom, with the knowledge or consent of said George W. Lumpkin, then such seizure was lawful, and the jury must find for the defendants.” 6. “If the jury believe from the evidence that William I. Lumpkin, at the time said goods were seized by the sheriff, owned the same, or any part thereof, which was not, or could not be, separated from the balance of said goods, then such seizure was lawful, and the jury will find for the defendants.”
Conceding that these instructions announce a correct legal principle, (which, in the view we take of the case is i. instructions, neither necessary to be considered or determined.) the action of the court in refusing them was rightful, inasmuch as the record does not disclose any evidence
It is claimed that the above bond is not a statutory bond, because it does not embrace all the conditions prescribed by section 28, 1 Wag. Stat., 607. That section provides that the indemnifying bond shall be “ conditioned to indemnify the officer against all damages and costs which he may sustain in consequence of "the seizure and sale of property so levied upon and claimed, and to pay and satisfy to any person or persons claiming the same all damages which such person or persons may sustain in consequence of such seizure and sale.” * * It will be perceived that the bond in suit contains no condition for the indemnification of the officer against all damages and costs which he may sustain in consequence of the seizure and sale of the property, but only the condition that the obligors “shall pay all damages and costs which the said George W. Lumpkin may sustain,” it appearing from the face that said Lumpkin was the claimant of the.property In consequence of this omission it is insisted that the bond