Opinion by
Ellison, J.
The plaintiffs are husband and wife; the defendant, Shaw, was the sheriff of Johnson county; the other defendants are charged to have been his aiders and assistants in the trespass complained of in the petition. Defendant, W. C. Hyatt, in an action against George W. Houx only, obtained judgment in the circuit court of *48Johnson county against him alone, for the sum of $330.00, the judgment reciting that “said debt was created by said defendant for necessaries for his present wife, Nannie Houx, and family.” An alias execution was issued on this judgment and delivered to defendant, Shaw, in which it was recited that the amount named in the writ was " for necessaries furnished for Nannie Houx, the, wife of said George W. Houx, and for their family,” and in which the defendant was commanded “ that of the goods, chattels, and real estate of the said George W. Houx and Nannie Houx his wife, you cause to be made the aforesaid debt, interest and cost.” This execution was, at the instance of defendants, Hyatt, levied on a lot of wheat, which had been that year raised, and was then stored on lands owned by Nannie Houx, to which she states she has the legal title.
Nannie Houx notified the sheriff, Shaw, in writing, verified by affidavit, of her ownership of the property, and offered him a delivery bond, which he refused to take, but proceeded with his levy and sale. It is not denied but that the sureties on the bond were amply good.
. Nannie Houx, in conjunction with her husband, filed her motion to quash the execution and levy, for the reason, among others, that she was not a party to the suit or judgment, upon which the execution was issued, and yet it commanded the sheriff to levy on her goods, chattels and real estate. Before this motion was determined by the circuit court the plaintiff in that case, W. C. Hyatt, asked leave to amend the execution by striking out and “expunging” that portion above set out in which the sheriff was commanded to levy on the property of Mrs. Houx. Leave being given to make this amendment, the court then overruled the motion to quash. It' will thus be seen that Mrs. Houx notified the sheriff of her claim to the property under section 2366 Revised Statutes, 1879, and tendered to him a good and sufficient delivery bond as is provided in said section. This action involves a construction of sections 2366 and 2367 of the Revised Statutes. By the *49terms of section 2366, a claimant, in the event of an indemnifying bond being given to the officer by the execution creditor, may, by giving a delivery bond, as therein provided, ‘ ‘ take possession ’ ’ of the property from the sheriff. By the terms of section 2367, Revised Statutes, these bonds are to be returned into court with the execution “ on or before the first day of the next term thereof, and the clerk shall enter the matter upon the docket, as near as may be as civil cases are docketed, and the matter shall, unless continued for cause, be tried at the term at which the claim is returned. The execution creditor shall answer or demur to the claim returned by the officer on or before the second day of the term, and the claimant may reply to the answer within such time as may be directed by the court, and all proceedings in relation to such claim shall be governed as far as practicable by the law relating to pleading and practice in civil actions * * * . If the judgement shall be for the execution creditor, it shall be against the claimant and his sureties in like manner, and the court shall order the property sold, and a certified copy of such order shall be delivered to the officer, and shall have the force and effect of, and be proceeded upon, as a special execution.”
It is thus specially provided that when a claim is made and a bond given by “any person other than the debtor in the execution,” as required in the sections mentioned, there must be a regular trial of the ownership in the circuit court, and the operation of the execution is suspended.
When a party, “ other than the debtor in the execution.,” claims goods in writing, verified by affidavit, and who will, upon the sheriff being indemnified by the other party, give his bond and security for the production of the property at the circuit court, he has a right to the possession of the property and a suspension of the execution, and a cessation of the disturbance of the property till there shall be a formal trial in court of the rights of property. Moore v. Gammell, 13 Tex. 120" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/moore-v-gammel-4888115?utm_source=webapp" opinion_id="4888115">13 Texas 120. It will be noticed that the statute of 1879 is very differ*50ent from that of 1865; sections 2366, as amended from the laws of 1877, and the new section 2367, introduced an entirely different and new mode of procedure upon claim of property made by a third person. The present-provisions are similar to the statute of Texas and other states. And while this mode of trial, will not deprive one of his common law remedy if he choose to assert it, yet if he elects to pursue the provisions of the statute, he has a right to its protection, and he is bound by his election of remedies. Howeth v. Mills, 19 Tex. 295" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/howeth-v-mills-4888895?utm_source=webapp" opinion_id="4888895">19 Texas 295. When this claim was made and a sufficient bond tendered it was not for the sheriff to say the claim was not good. That was the very thing to be tried, and which the statute has said shall be tried by a court, under the forms and solemnities of law, and not by a sheriff. A proceeding under the sections named, ipso facto, arrests the execution, and it was the sheriff’s duty to have followed the statute, remitting the parties to their trial in court. In Moore v. Gammell, supra, it was said that proceedings having been begun by the claimant under the statute and bond given " that arrested the execution under the statute, the trial then, should be under the statute.”
Defendants contend that “sections 2366 and 2367 can have no application to this cause, for the claim made by Nannie Houx and the bond given by her, was the claim and bond of the owner of the property liable to be seized and levied upon under this execution.” And yet they claim that the property is left by the statute “exactly as the common law left it. The statute is one of exemption only, and not of property.” These statements are contradictory. If this property is “exactly as the common law left it,” then her claim was not the “claim of the owner of the property,” for by the common law it belonged absolutely to the husband. If we agree to the first statement, that the claim was invalid because made by “the owner of the property liable to be seized and levied upon,” it would seem that being the owner — being her property it could not be taken on an execution in a proceeding to which she was not made a party. If it be true that she is the owner of *51the property, it is not consonant with law or honesty, to suppose it could be taken from her in a proceeding in which she has no voice or control, and no opportunity to .•show the subject matter of the action was not for necessaries ; nor to avail herself of the right of appeal. Here would be an opportunity quickly embraced by a worthless husband, to collude with the creditors of his dissipation, and suffer a judgment in their favor, under pretext of necessaries for his wife and family. Liquor and gaming ■debts would easily metamorphose into family necessaries. We are not called upon, in this case, to say what are the wife’s rights, under section 3295, Revised Statutes; or whether the section be one of exemption or property; nor whether she should or should not be made a party to a proceeding, the ultimate object of which is to subject the'rents, issues and products of her real estate to sale; nor what should have been the result of a trial of the ownership of the property under her claim, if the sheriff had seen fit to have permitted the statute to control his action. He has obviated these troublesome questions by ■throwing the matter into a simple case of trespass, thereby making himself and assistants, fiable for the value of "the property illegally retained and sold. Not being content to permit the questions arising under section 3295 to be decided by the circuit court, but preferring to assume the functions and responsibilities of that tribunal by deciding the woman’s case against her on the spot, the defendants must bear the consequences. It was depriving her of her right to a trial, in a court of law, of the very matter in dispute. There was no discretion in the ■officer. He should only have followed the statute.
That the wife is a competent party to make claim in this respect we have no doubt. The claim was made by the wife in the case of McDuffie v. Greenway, 24 Tex. 625" court="Tex." date_filed="1859-07-01" href="https://app.midpage.ai/document/mcduffie-v-greenway-4889669?utm_source=webapp" opinion_id="4889669">24 Texas 625, and of Louis Chapman et al. v. James Allen, 15 Ib. 278. She was joined in the bond by her husband and sureties, who are admitted to be worth many times the penalty. And even if it should be said she, being feme ■covert, was not bound by the terms of the obligation, yet the sureties would have been compelled to live up to *52all its exactions. Weed S. M. Co. v. Maxwell et al., 68 Mo. 486.
The judgment is reversed and the cause remanded:
Philips, P. J., concurs; Hall, J., dissents.