Lewis v. Mansfield

| Ky. Ct. App. | Apr 8, 1880

JUDGE HINES

delivered the opinion of the court.

This action was instituted by the claimant of property against the sheriff, on his official bond, charging an unauthorized seizure and sale under attachment.

Before levying the attachment, and before making the ■sale, the sheriff, being in doubt as to whether the property was liable to the attachment, demanded and obtained a bond of indemnity, conditioned to pay the sheriff or any claimant of the property any damages they might suffer in consequence of the seizure under the attachment.

The sole question is, whether the owner of the property may sue upon the bond of the -sheriff, given for the faithful discharge of his duties in general, or whether the owner is-compelled to resort to the bond of indemnity.

Section 211 of the Civil Code authorizes the sheriff, when in doubt whether property is subject to attachment, to demand a bond ‘ to the effect that the obligors will indemnify the officer against any damage he may sústain by reason of the levy of the attachment.”

Section 641, in reference to executions, authorizes a bond to indemnify the officer levying the execution and to pay to-any claimant such damages as he may suffer; and section 643 provides that the claimant or purchaser of such property shall be barred of any action against the officer for such seizure if the surety on the indemnifying bond was good at the time the bond w^s taken.

It is clear that section 643 applies to the seizure or sale of property under execution, and not to a seizure or sale under attachment.

If the remedy on the bond in the case of executions was not made exclusive by the express letter of the Code, the person injured by the levy and sale would be entitled to look for indemnity both to the official bond of the officer and to the bond of indemnity given in the particular instance. The bond of indemnity in such case would furnish only an additional security to the claimant of the property wrongfully seized under execution; and if section 211 authorized a bond to be taken to indemnify the claimant, as there is no provision that it shall exempt the officer from liability by reason of the seizure, it would only furnish a cumulative remedy to the owner of the property. But that section does not authorize any bond to be taken except one to indemnify the officer, and as the bond in this cáse goes further, it is questionable whether it is enforceable at all. That point we do not decide. We do decide, however, that no matter what the form of the bond, it cannot operate to take away the remedy of the party injured, which is given him in the official bond of the officer. In entering upon his office, the sheriff executes a bond for the faithful discharge of his duties, to which every citizen has a light to look for indemnity, and no act of the officer can take away this right, unless, as in the case of executions, the law expressly so provides. To hold otherwise would be to compel one injured by the act of an officer to release the security given him by the execution of the official bond, and to accept another, taken probably without his knowledge or consent. It may be well for the proper administration of justice to relieve the officer from liability on his official bond, when the bond of indemnity is á sufficient security; but this can only be done by express provision of the law, which is not the case where the officer takes a bond of indemnity against the wrongful seizure of property under attachment.

The judgment of the court below, .holding that the claimant of the property had no right to proceed upon the sheriff’s bond, on account of the execution of the bond of indemnity, and dismissing appellant’s petition, is reversed, and cause .remanded, with directions for further proceedings.