Mihalovitch, Fletcher & Co. v. Barlass , 36 Neb. 491 ( 1893 )

Maxwell, Ch. J.

This is an action upon an indemnifying bond for the sum of $550 given by the plaintiffs in error, to the defendant in error, who was sheriff of Adams county, to indemnify him for levying upon and selling certain property levied upon as belonging to one Fist, who was indebted to the plaintiff in error. On the trial of the cause the jury returned a verdict in favor of the defendant in error for the sum of $550, upon which judgment was rendered. The principal error relied upon is that the verdict “is contrary to law.”

The testimony tends to show that on the 24th of September, 1887, the plaintiffs in error commenced an action in the district court of Adams county against one Emmanuel Eist to recover the sum of $274.50, and caused an attachment to be issued which was placed in the hands of the defendant in error for service; that he refused to levy the same upon the property alleged to be that of Fist, unless the plaintiffs in error would execute to him an indemnifying bond, which they did, whereupon he levied the attachment on certain property in a car on the St. Joe & Grand Island Railway Company which was consigned to the A. Furst Distilling Company, St. Joe, Mo. The plaintiff in error recovered judgment against Fist and an order for the sale of the property so levied upon, and the property was sold under said order. On the 7th of November, 1887, the Furst Distilling Company brought an action in replevin in the district court of Adams county against the defendant in error for the recovery of said property, but as it had been sold under the order of court and the proceeds applied on the judgment of the plaintiffs in error, the only remedy of the Distilling Company was an action for conversion of the property. The action was therefore changed to one for conversion, and the names of the plaintiffs in error were omitted from the petition, and the action proceeded against the defendant in error for the value of the property, and judgment was recovered for the sum of $2,000, which judgment is unreversed. The defendant in error thereupon brought an action on the indemnifying bond. It seems to have been claimed in the court below that there was no lawful authority to give an indemnifying bond and therefore if is void, and the capable judge before whom the case was tried, in overruling the motion for a new trial, bases his action principally on the ground that such authority does exist and that the bond is valid. We have no doubt his views in that regard are correct and that the action may be maintained.

It is claimed that the defendant in error permitted judgment to go against him by default, and that the plaintiffs in errof had a full and sufficient defense to the action. No doubt if an officer, by collusion and fraud, should wrongfully permit a judgment to be rendered against a party giving the indemnity, these facts might be shown as grounds for impeaching the judgment; in which case it would be necessary to' submit the alleged defense, and the reasons for not asking to intervene in the former action and present the defense then. We find nothing of the kind here. In the absence of collusion and fraud the parties will be bound by the judgment, and we cannot in this action enter into a consideration of the merits of that case. No reason- is shown by the record for the reversal of the case, and the judgment is

Affirmed.

The other judges concur.