Moore v. McSleeper

Attachment—Indemnity Bond to Sheriff—Several Liability—Judgment on Motion Against Sureties.—A motion for a judgment against the sureties upon an indemnity bond, given to the sheriff to indemnify him against liability on account of the execution of a writ of attachment, may he made under section 1055 of the Code of Civil Procedure, although the judgment is a several judgment in different amounts against the sureties upon the bond, the obligation of the sureties being for several different amounts for which they have become liable upon the bond.

Id.—Construction of Code.—Section 1055 of the Code of Civil Procedure should be construed as authorizing the entry of judgment against the sureties for the amount named in the bond, and for which each has become liable, but not to exceed the amount of the judgment recovered against the sheriff, including costs of the action.

Id.—Nature of Indemnity Bond—Evidence of Liability of Sureties— Prima Facie Case.—An indemnity bond given to indemnify the sheriff on account of the execution of a writ of attachment indemnifies him against liability for the seizure, and he becomes liable therefor when a judgment is rendered against him; and he makes a pi-ima fade case under the statute against the sureties upon the bond, by the production of the indemnity bond, the judgment against him, and proof of notice to the sureties to appear and defend the action in which the judgment was recovered.

Id.—Burden of Proof—Payment of Judgment—Return of Property. In order to overcome the prima fade case made by the sheriff, the burden of proof is upon the sureties to show that the judgment against the sheriff had been satisfied by them, or by a return of the property, or that the property with which to satisfy it was, or ought to have been, still in the possession of the sheriff.

Id.—Jurisdiction of Superior Court—Several Liability Less Than Three Hundred Dollars—Motion For Judgment Against Sureties.—A motion for. a several judgment against the sureties upon an . indemnity bond where the several liability of each surety is less than three hundred dollars is not without the jurisdiction of the superior court, the motion not being an independent action against the sureties, but simply a supplemental motion made for judgment against the sureties in an action of which the superior court had jurisdiction, and in which it had already proceeded to judgment against the sheriff as a defendant.

Id.—Indemnitors Real Parties in Interest—Notice—Conolusiveness of Surety.—The provision in section 1055 of the Code of Civil Procedure permitting a motion for judgment against the sureties who have indemnified the sheriff, proceeds upon the theory that the indemnitors are the real parties defendant when the sheriff is sued for an official act for which they have indemnified him, and that when they have notice of the pendency of such an action the judgment against the sheriff is conclusive of his right to recover against them.