Stevens v. Wolf , 77 Tex. 215 ( 1890 )

COLLARD, Judge.

—The only assignment of error of appellant E. O. Stevens that can be considered is that the court erred in not rendering judgment in his favor against Robert Carey & Co. for the whole amount of the judgment on the bond of indemnity furnished by them to him. The other assignment of error made by him, that the court erred in overruling his motion for new trial, is too general. The indemnity bond stipulated the amount for which the principals and sureties were bound to Stevens-(the constable making the levy) as $192; the amount of the judgment against Stevens and the sureties on his official bond was $401.75. The answer of Stevens set up that Robert Carey &• Co., the attaching creditors, pointed out the property levied on as the property of Abrahams, the defendant in attachment. He also sets up the conditions of the indemnity bond that principals were to “forever save him harmless from all costs, charges, damages, and suits he might become liable to by reason of the levy.” He prayed for judgment over against Robert Carey & Co. for any amount that might be adjudged against him, also for judgment against the sureties on the indemnity bond, and for $50 attorney fees.

Where there is no statute regulating the matter, the plaintiff directing the sheriff to attach specific property is liable to him for any loss he may sustain on account of the levy upon an implied promise of indemnity. Waples on Att. and Gar., 148. But in our statute it is prescribed that the officer makes a levy of attachment at his own risk, though he may require the plaintiff to execute to him a bond of indemnity. Sayles’ Civ. Stats., art. 165; Rev. Stats., art. 165. We see, therefore, that there was no implied liability on the part of Carey & Co. to indemnify the constable making the levy. He required a bond of indemnity which stipulated the amount of liability—$192. This amount is all the officer could recover on the bond, though his loss is shown to be greater than that amount.

Appellants Carey & Co. and their sureties on the indemnity bond complain by assignment of error that the court erred in overruling their exceptions to the petition because of misjoinder of parties; they make the same point in motion for a new trial and in arrest of judgment.

Plaintiff’s suit was against Stevens, the constable, and the sureties on his official bond, and against Robert Carey & Co. and the sureties on their indemnity bond. Stevens in his answer set up the indemnity bond, and asked that the indemnitors be made parties, alleging that they had already been cited. The judgment in overruling the exceptions recites these facts.

The statute in force at the time the levy in question was made authorized the officer making levy to make the principal and sureties on his indemnity bond parties to the suit against him. Gen. Laws, 1885, p. 90; Sayles’ Civ. Stat., art. 4525. There was no error in the court’s ruling.

Appellants Carey & Co. and their sureties complain that the court erred in rendering judgment against them for $25 as attorney fees of Stevens. The court rendered judgment in favor of Stevens against them for $192, the amount named in the bond, $25 of which he allowed as attorney fees. The judgment; against Stevens was for $401.75. Stevens was entitled to judgment for the amount of the bond; he could recover no more, and it was immaterial how the court may have divided it.

We find no error in the judgment, and conclude it ought to be affirmed.

Affirmed.

Adopted May 6, 1890.