53 Ark. 330 | Ark. | 1890
Appellees sued appellants upon a bond of indemnity, given by them to W. L. Baskins, as special constable, under section 3021 of Mansfield’s Digest, to indemnify them against the damages they might sustain in consequence • of the seizure or sale of the property of the judgment debtor of appellants, who was one J. B. McGhee, against whom they had obtained judgment before a justice of the peace of Perry county, Arkansas, and upon which execution had been issued and placed in the hands of said special constable. The constable sold the property at public sale, and, at the sale, one Deshazer claimed the property and forbade the sale. Deshazer brought suit in trespass against the constable and the other appellees, purchasers of the property at the sale, and recovered fifty dollars and costs as damages.
In this suit against the appellants (the indemnitors), they offered to prove by witnesses that J. B. McGhee, against whom appellants had obtained judgment, was the sole owner of the property sold by the constable, and that Deshazer never owned or had any interest in it, and that McGhee was not indebted to Deshazer. And they also offered to prove that, at the time of the judgment against McGhee, he was absent from Perry county where he resided, and that upon his return Deshazer admitted that his claim to the property was groundless, and offered to repay McGhee every cent he had received for the same. This testimony was excluded upon the ground that appellants were concluded by the judgment against appellees in favor of Deshazer, which appellees had been permitted to read in evidence over the objection of appellees. There was judgment for appellees, and an appeal to this court.
The appellants, having had no notice of the suit by Deshazer against appellees, are not concluded by the judgment in said suit, and should have been let in to make their defense. The judgment was only prima facie evidence and not conclusive against them.
Reversed and the cause remanded.