191 Mo. 334 | Mo. | 1905
This is a suit upon an indemnifying bond, executed by the defendants to the plaintiff Smith, to hold him harmless on account of the levy of a special execution in an attachment proceeding, lately pending in Newton county, Missouri, wherein the defendant Rogers was the plaintiff, and one James Lewis was the defendant. After the levy, one Benjamin Eiseman claimed to own. the property, and the defendant Rogers as principal, and the defendant Rush as surety, executed the indemnifying bond to the plaintiff Smith, the constable who made the levy. Afterwards Eiseman assigned his claim to the plaintiff McElhany, who instituted this action on the bond, the constable having sold the property levied on and applied the proceeds to the payment of the debt owing to. the defendant Rogers by said Lewis. The circuit court held that the plaintiff could not recover on the ground that the statutes of this State do not authorize or recognize an indemnifying bond in cases where the suit was in attachment and the writ was a special execution, and where the defendant in the attachment suit was not personally served so that a general judgment could be rendered against him. Prom that judgment the plaintiff appealed to the St. Louis Court of Appeals. The decision in that case is reported in 99 Mo. App. 252. The majority of the Court of Appeals, in a learned and exhaustive opinion by Goode, J., reversed the judgment of the circuit court and ordered the cause remanded for a retrial, holding that as the levy in this case was under a final judgment, the case fell within the provisions of section 4043, Revised Statutes 1899, which authorizes a constable to demand an indemnifying bond where the property levied on is claimed by a third person, and that the case was properly distinguishable from the decision of this court
The facts in judgment are few and undisputed. They are these: The defendant Rogers instituted a suit in attachment against one James Lewis before a justice of the peace in Newton county. The constable levied the attachment on a certain boiler and engine. Lewis was not personally served, but was brought into court by constructive notice. Rogers obtained judgment by default, and a special execution was issued and ordered to be levied upon the boiler and engine. After the levy Eiseman, as assignee, for the benefit of the creditors of John T. McElhany, gave the constable notice, in writing, duly verified, that he claimed the property. Thereupon the constable demanded of Rogers an indemnity bond, and Rogers as principal, and Rush as surety, executed and delivered to the constable the indemnity bond sued on. The bond was conditioned as follows: “Whereas, by virtue of an execution issued by W. H. Campbell, a justice of the peace of Neosho township, in Newton county, in the State of Missouri, on the 7th day of February, 1897, on the judgment in favor of said John A. Rogers and against James H. Lewis, said James H. Smith, constable of said township, has levied on a certain ten-horse steam engine and boiler, known as Birdsall engine and boiler, as the property of said James H. Lewis; and whereas, Benjamin Eiseman, assignee of John T. McElhany, claims said‘property, and has delivered to said constable a written notice of his claim therefor according to law.
Upon receiving said bond the constable sold the property and applied the proceeds to the payment of the debt Lewis owed Eogers. Thereafter Eiseman, as assignee of MeElhany, wound up the assignment, and transferred all bis right under the bond to McElhany, who instituted this suit.
I.
The learned opinion of Goode, J., speaking for the majority of the St. Louis Court of Appeals, which must be read in connection with what is here said, leaves comparatively little for discussion and decision by this. court. The learned judge of that court who dissented from the majority opinion did so solely on the ground that in his opinion the opinion of the majority of the St. Louis Court of Appeals was in conflict with the decision of this court in State ex rel. O’Bryan v. Koontz, 83 Mo. 323. The opinion in the Koontz case was delivered by Philips, Commissioner, and is an interesting and convincing discussion of the question presented for judgment by the facts in that case, which were these: That was an action on the official bond of Koontz as constable, for wrongfully releasing property seized under a writ of attachment in favor of the relator, O ’Bryan. It appears that the constable had levied the writ of attachment on certain personal property and that third persons had claimed to
Such is the strict letter of the statute of this State above quoted, and the defendants insist that they shall be judged by the strict letter of the law. It is claimed by the defendants that while justices of the peace have jurisdiction in attachment cases, and whilst section 3890, Revised Statutes 1899, makes the provisions of the law governing attachments in courts of record apply to attachments before justices of the peace, so far as they may not be inconsistent with the provisions
The learned judge who wrote the opinion of the Court of Appeals in this case, as well as the learned commissioner who wrote the opinion of this court in the Koontz case, pointed out that this condition was a casus omissus of the Legislature to provide for an indemnifying bond, and such seems to be the fact. In this connection and as emphasizing this view, it is interesting to note that the special acts of 1855, 1858-9, specially applicable to the city of St. Louis, to be found in the appendix to Revised Statutes 1899, vol. 2, page 2550, authorize a sheriff, marshal, constable or duly authorized officer, to demand an indemnifying bond from a plaintiff where the property levied upon under any execution or attachment is claimed by a third person, and require the third person to sue on the indemnifying bond, and exempt the officer from liability unless the sureties on the indemnifying bond are adjudged insufficient. This statute being local to St. Louis is not applicable to the plaintiff in this case, but it emphasizes the fact that the failure to provide a similar remedy throughout the whole State is a casus omissus of the Legislature.
The crucial question in this case is whether the facts in the case at bar differentiate this case from the decision of this court in the Koontz case. The St. Louis Court of Appeals aptly pointed out that the decision in the Koontz case is not decisive of the case at bar, for
The second contention of the defendants is that the execution in this case was a special execution based upon a judgment in attachment where the defendant in the attachment suit was brought into court only by constructive notice, and therefore no general judgment could be rendered against him, and hence section 4043 does not apply, because that section contemplates an execution issued upon a general judgment rendered upon personal notice. This contention is. untenable. The language of section 4043 is, “If a constable levy an execution,” etc. No distinction is made in that section between a general and a special execution. Section 4032, Revised Statutes 1899, provides that “upon every judgment rendered by the justice of the peace, execution shall be issued by such justice, in the manner hereinafter prescribed, as soon as the judgment is rendered,” etc. Sec. 3151, Revised Statutes 1899, relating to executions upon judgments of courts of record, provides: “The party in whose favor the judgment, order or decree is rendered, may have an execution in conformity therewith.” Thus, neither section 4032 nor 3151 refer especially to either general or special executions, but use the general terminology, “execution,” the same as is used in section 4043. An execution is thus defined: “A writ of execution is the process by which a court carries out its judgment. . . . Execution is used to mean a process for the enforcement of the payment of a judgment, for money recovered in a civil action, out of the property of the judgment debtor.” [8 Enc. of Pl. and Pr., p. 311]. The same author, at page 390, defines the difference between general and special executions, as follows: “A special execution is one that directs a levy upon some specific property, while a general execution is one that makes no such requirement,
III.
The next contention of the defendant is that there had been no levy of the execution when the indemnifying bond was executed, but that the property was in custodia legis, having been seized under the writ of attachment. This contention is not available to the defendants, for the reason that the indemnifying bond recites the fact that the constable had levied the execution prior to the execution of the indemnifying bond. The defendants are, therefore, estopped from claiming that there had been no levy. [Hundley v. Filbert, 73 Mo. 34; State ex rel. v. Williams, 77 Mo. 463; Brewing Co. v. Niederweiser, 28 Mo. App. 233; State ex rel. v. Goodhue, 74 Mo. App. l. c. 166.]
The last contention of the defendants is that the indemnifying bond describes the property levied on as a certain ten-horse steam engine and boiler known as Birdsall engine and boiler, whereas the property actually seized was a ten-horse boiler and engine known as a Bussell engine, and it is urged, especially on behalf of the surety, that his contract was to hold the constable, or any other person, harmless against damages for the sale of a Birdsall engine and not of a Bussell engine. It is admitted that there was only one engine levied on and only one engine about to be sold by the constable under the judgment on the attachment in the case of Rogers v. Lewis, when the indemnifying bond was given, and that the defendant Bogers received the proceeds of the sale of that engine.
Of this contention it might be sufficient to say that no such, issue was raised by the answer of the defendants in this ease, and that the notice of claim, the indemnifying bond, the cause of action filed in the attachment suit by Rogers against Lewis and the return of the constable on the writ of attachment, all describe the engine and boiler as a Birdsall engine. The execution issued in the attachment suit described the engine as a Bussell engine, but there was no objection made by the defendants to the introduction of the execution in evidence on that ground. Aside from this, however, there is no merit in the contention, for there is no room for doubt that there was but one engine levied on under the attachment writ and directed to be sold by the special execution, and that was the same engine that was claimed by Eiseman, and for the sale of which the defendants agreed to indemnify the officer. The property levied on and sold is the same. The only mistake was in the name of the maker of the engine referred to in the execution.