49 Kan. 552 | Kan. | 1892
Opinion by
In an action by Moore & Almond against one Samuel Black, a horse in the possession of said Samuel Black was attached, and afterwards sold by' the constable as the property of Black. After the sale, William Black, who was the father of Samuel Black, claimed the horse, and commenced the action against A. C. Schilling, constable, and A. Van Fassen and R. D. Faught, sureties on his official bond, alleging a breach of the condition thereof in seizing and selling said horse in a proceeding against Samuel Black, to satisfy a debt of said Samuel Black.
The defendants in the court below demurred to the petition of the plaintiff in that court, and, as grounds therefor, alleged: 1. A defect of parties, both plaintiff and defendant. 2. That causes of action were improperly joined. 3. That the petition does not state facts sufficient to constitute a cause of action. Demurrer overruled.
In the second place, complaint is made that causes of action are improperly joined, to wit, a cause of action against the constable with a cause of action against the sureties.
We think a cause of action against a constable for a breach of the condition of his official bond may be joined with a cause of action against the sureties on said bond for such breach.
In Hoye v. Raymond, 25 Kas. 665, the case cited in defendants’ brief, Mr. Justice Valentine says: “ We also think that the constable and his sureties might be joined in one action upon the constable’s bond.” In this case the cause of action is the alleged breach of a joint as well as several obligation, and there would seem to be not only no reason, under our code, why the constable and the sureties on his official bond should not be joined in an action for a breach thereof, but that the better practice would suggest such joinder.
. The argument that the petition does not state a cause of action is based upon the idea that proceedings cannot be had against the sureties until the remedy against the constable has been exhausted, and that, as the petition does not show proceedings first had against the constable, it states no cause of action. We think the premises of this argument wrong, and, therefore, the conclusion is untenable. The court did not err in overruling the demurrer to the petition. The de
“The original seizure was wrong. Defendant did not assent to it. Her silence during the continuance of the attachment, and her failure to object to any of the proceedings of the plaintiffs, give them no greater rights than they had in the first instance, and she waived none of her rights.”
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.