In a proceeding instituted in a court of a justice of the peace against Arthur Lieske, a certain automobile belonging to appellee was attached as the property of Lieske, in whose possession it was at the time. There was judgment for plaintiff, to satisfy which the automobile was sold by the constable. Whereupon, the case at bar, an action for the wrongful conversion of the automobile, was commenced by appellee against the justice of the peace, the constable, the plaintiffs in the attachment suit, the principal on the attachment bond, and against appellant Summerland who was the surety on the bond. The defendants, other than appellant, having failed to appear and answer appellee's *Page 31 complaint, were defaulted, and judgment for $250 rendered against them. Appellant appeared and filed answer, and a trial resulted in a judgment against him for $250. Summerland appeals.
It appears from the evidence introduced at the trial, that after Lieske was served with summons in the attachment suit, he notified the justice of the peace, in writing that the 1, 2. automobile did not belong to him, but did belong to appellee. Lieske did not deny that he owed the claim as alleged in the complaint in the attachment suit, and was not present at the trial of that cause. It also appears from the evidence on the trial of the instant case, that appellant Summerland's only connection with the attachment suit, and the sale of the automobile by the constable, was that he was surety on the attachment bond. As surety, his obligation was contractual. His only liability was upon the bond which was payable to Lieske, the defendant in the attachment suit. He was not, and could not have been, liable for the alleged wrongful conversion. As was said by the Supreme Court of California in its opinion in McDonald v. Fett (1874),
Reversed. *Page 32