44 Ind. 504 | Ind. | 1873
Action by the appellant against the appellees on a constable’s bond, for not levying and making the amount of an execution in favor of the relators, against one Millington Lewis, it being alleged in the complaint that the execution defendant had property, out of which the constable might and should have made the money. The defendants, the constable and his surety, pleaded jointly the general denial, and the constable separately pleaded, “ that in all things he obeyed the mandate and bidding of the plaintiff’s attorney, and that he used both lawful and unlawful means to secure and make the plaintiff’s claim,” etc. To the last paragraph, there was a general denial filed by the plaintiff. A trial by the court ended in a finding for the plaintiff, assessing the damages at one cent. There was a motion by the plaintiff for a new trial, which was overruled, and judgment rendered for the amount of the finding.
Among the reasons for a new trial, it was alleged that the evidence was not sufficient to justify the finding, and also that the amount of the assessment of damages was too small.
The only error legally assigned is, that the court improperly refused to grant a new trial.
We will state the facts, in substance, as disclosed on the trial. The bond of the constable was read in evidence, and there was proof that Sandlin was constable. The judgment, which was rendered October 28th, 1871, and the execution thereon were also read in evidence. At the time the execution was issued, November 6th, 1871, the execution defendant was keeping store in connection with his mother-in-law, Mrs. Adair. He had been doing business in his own name.
Branson, one of the relators, also called on the constable about the middle of November, 1871, and requested him to levy on the- goods and household furniture, and offered him an indemnifying bond, with securities, if he would do so. He did not say he wanted any bond, but refused to make a levy.
Conceding that the execution defendant was a resident
The execution plaintiffs were under no obligation to give a bond of indemnity to the constable. He was bound to perform his duty according to law without such bond. Bosley v. Farquar, 2 Blackf. 61. It was said in that case, that “ if an indemnity is offered, or given, the sheriff may be, and is, required to do many things that he would be justified in not doing if there was no indemnity; and if he refuses an indemnity, when offered, he will be held liable in many cases where he would be otherwise excused.” And Bayley v. Bates, 8 Johns. 187, Van Cleef v. Fleet, 15 Johns. 147, and 3 Stark. Ev. 1344, are cited as authorities.
• Our statute provides an easy mode of settling the question as to the ownership of personal property seized by a constable, before the sale of it, which is to give notice to the party setting up the claim, that he has seized such property, etc., and if the person so notified does not, within the specified time, institute proceedings to try the right to such property, etc., he will be barred from having any action against the officer or the purchaser of such property. 2 G. & H. 635, secs. 17, 18.
The conduct of the constable in this case shows him entitled to justice and nothing else. The levity and falsehood of the second paragraph of his answer, in which he asserts that “ in all things he obeyed the mandate and bidding of the plaintiff’s attorney, and that he used both lawful and unlawful means to secure and make the plaintiff’s claim,” his utter refusal to levy on the property of the execution defendant, because he “ was a clever gentleman and would
The judgment is reversed, with costs, and thé cause remanded; with instructions to grant a new trial.