Hawkins v. Dean ( 1873 )

Opinion by

Judge Pryor:

If the bond declared on is to be regarded as a common law obligation the demurrer thereto was properly sustained. It is nowhere alleged that the execution of the plaintiffs is unsatisfied, or that he has sustained any damage by reason of this: alleged claim of the appellee.

The proceeding by which the claimant of the property prevented the sale by the constable was derived altogether from- statutory enactment and the bond executed in accordance therewith. The mode of ascertaining his right to it, as well as the remedy allowed the plaintiff, is clearly defined. This special proceeding should have been adopted and is the only mode of determining the right of property in such cases. The proceeding should have been by notice and motion on the bond as provided by Sec. 716, Civil Code. Nor do we think the circuit court had jurisdiction. Sec. 719 provides that the bond of the claimant shall be returned to a justice of the peace if the executions issued from such a court. It is true that the bond recites, that the amount of the two executions is sixty-three dollars, but this does not deny the justice of jurisdiction as the only question to be tried by him is whether or not the property levied on is subject to the execution.

If found subject and the value of the property to be one hundred dollars, still the justice can only give judgment for the amount of each execution and ten per cent interest thereon. It is the amount of the execution that gives the jurisdiction and not the value of the property. If a constable levies on a house of the value of five hundred dollars with an execution for twenty, all the justice can do when the claimant of the house is unsuccessful is to render judgment for the amount of the debt and ten per cent thereon, and if the value of the property is less than the execution, the ten per cent is only to be paid upon the value. (Sec. 719, Civil Code.)

C. A. Hardin, far appellants. E. J. Polk, for appellee.

Judgment affirmed.