Mason v. Rice, 66 Iowa 174

Mason v. Rice

66 Iowa 174 | Iowa | 1885

Reed, J.

The holding of the circuit court, in effect, was that, as the writ of attachment only empowered the sheriff to levy on the property of I. N. Rice & Co., and as the condition of the attachment bond was that plaintiff would pay such damages as that firm might sustain by reason of the wrongful suing out of the writ, defendant did not have a right of action on the bond for the damages sustained by him in consequence of the seizure under the writ of his individual property. This holding is right. The object of the statute in requiring a bond to be given is to afford security to the person whose property is sought to be attached, for such damages as he may sustain in consequence of the seizure of his property, in case the writ is wrongfully sued out. The bond must be given before the attachment can issue, (Code, § 2959,) and it is for the benefit of those parties only whose property may be seized by virtue of the writ.

The undertaking of the obligors in the bond is that they will pay to the defendant whatever damages he may sustain in consequence of the wrongful suing out of the writ. If the *177writ commands the officer to attach the property of A., and his property is seized thereon, he has his remedy on the bond, if the suing out of the writ was wrongful, for he is the party for whose benefit the bond was given; and, as the writ empowers the officer to seize his property, the damage which he sustains in consequence of its seizure is occasioned by the wrongful suing out of the writ. But if the writ commands the officer to attach the property of B., and he seizes A.’s property thereon, the injury which A. sustains is in consequence, not of the wrongful suing out of the writ, but of the wrongful levy of the officer; and consequently, as he is not the party whose property was intended to be seized, and the bond was not given for his -protection, and was not intended as a security against wrongs of the character of that done him in the seizure of his property, he has no right of action upon it. It is claimed, however, that as Beebee was made a party defendant to the action, and as plaintiff prayed in the petition that a writ of attachment issue against the property of all of the defendants, he and the sureties on the attachment bond ought not to be permitted to avoid responsibility because the individual name of Beebee was omitted from the bond and writ of attachment. It is true, doubtless, that, if a proper bond had been filed, the clerk would have been warranted by the allegations and prayer of the petition in issuing a writ against the individual property of Beebee. But the only bond which plaintiff filed was conditioned for the payment “of all damages which I. N. Rice & Co. may sustain by reason of the wrongful suing out of said attachment.” On the filing of this bond he clearly was not entitled to an attachment against the property of any party except the partnership of I. N. Rice & Co.

The clerk, doubtless, took this view of the question, for the writ which he issued commands the sheriff to attach the property of I. N. Rice & Co. It contains no reference to the individual members of the firm or their property. The name of defendant Beebee is not mentioned in the writ, nor *178does it contain any recital which in any manner indicates that he is a partner in the firm. The writ, then, clearly did not empower the sheriff to levy on his individual property. The only power which the officer had in the premises was expressed in the mandate of the writ, and by that he was empowered to attach the property of the partnership alone. The attachment, then, was sued out by plaintiff against the property of the firm, and it empowered the sheriff to levy on the firm property only. But the officer without right or authority, attached the individual property of defendant Bee-bee. The injury, then, which defendant has sustained, was occasioned, not by the wrongful suing out of the attachment, but of the wrongful act of the sheriff in seizing his property on the writ. As the injury of which he complains was caused by the trespass of the officer, and not by the suing out of the writ, the question as to his remedy is not at all affected by the fact that he is a party to the suit in which the attachment was issued, and that the writ might have been issued on the allegations of the petition against his property, as well as that of the partnership. His right of action is against the wrong-doer by whose trespass he has been damaged, and not upon the bond. At a former term an opinion was filed reversing the judgment of the circuit court. But a rehearing was granted, and upon a reargument of the questions involved we have reached the conclusion that the judgment ought to be

Affirmed.