101 Ky. 667 | Ky. Ct. App. | 1897
delivered the opinion of the court.
It appears from the petition in this action that the appellee, Jos. Lewis, was the sheriff of Olay county, and appellee, Morgan, was his deputy, and that by virtue of two' executions issued to the sheriff of Olay county against L. S. Holcombe that the said Lewis and Morgan levied upon a lot of property, which was in his possession at time of suit, but which in fact, as alleged, belonged to the appellant, Hoskins, and the object of the suit was to recover possession of the property so seized by tire sheriff, it then being in his possession. The sheriff answered, and, besides denying plaintiff’s title,
A demurrer was filed to the second and third paragraphs-of the answers of plaintiffs in the execution, and motion made to strike out of the sheriff's answer the second and third paragraphs thereof. It seems that the sheriff having failed to verify his answer, the motion was sustained. The second and third paragraphs of his answer were stricken out, and the demurrer overruled as to the answers of plaintiffs -in the execution, but the court- further held that the demurrer reached back to the petition, and adjudged the petition insufficient, and plaintiff failing to amend, his petition was dismissed, and from that judgment he prosecutes- this appeal.
The principal question involved is whether the owner of property can maintain an action iof replevin against the sheriff who has possession thereof by virtue of the execution issued against some one other than the plaintiff, bond of indemnity having been first given and d-ue return made-thereof.
The contention of appellee seems to be that section 645-of the Civil Code is the only provision or law under which the claimant of property can prevent a sale thereof under an execution issued against a third party, but we- can not
This section refers only to the damages that such claimant would be entitled to resulting from such seizure or sale, and was not intended to bar the right to maintain an action of claim and delivery. Indeed the legislature could not divest a party of title to property by any such provision. The object of the section was to relieve the officer in such case from liability to be made to pay the value of the property so sold and the damages that the owner might sustain thereby when the sheriff had taken and returned an indemnifying bond as required by law. *
It will be seen from section 641 of the Code that one of the covenants of such indemnifying bonds is that tb^ obligors therein will indemnify the sheriff against the damages which he might sustain in consequence of the
It will be seen that the sole object of this suit is to recover the property levied on, and then in the possession of the defendants, Lewis and Morgan, and no judgment is asked against them for anything except for the property and the costs. From the averments in the petition the appellant was then the owner of the goods, and the defendants, Lewis and Morgan, were in the possession of them, and that without right, according to the averments of the petition, and if the averments were true he was entitled to an order of delivery and a judgment for the property levied on, hence the court erred in overruling the demurrer and dismissing ■appellant’s petition.
For the reasons indicated the judgment is reversed and the cause remanded, with directions to sustain the demurrer to all that part of the answers filed except such parts as deny the ownership or title of appellant, and for proceedings .consistent with this opinion.