By the Oowrt —
Atwatee, J.
— This was an action commenced in a Justice’s Court, of Scott County, by Clark, the Plaintiff in Error, upon a replevin bond, executed by Norton, and Johnson, The cause was taken by appeal to the District Court of that county, and upon motion of Defendants’ attorney, judgment was rendered for Defendants, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The Plaintiff removes the cause to this Court by writ of error.
The grounds of error urged below in the motion for judgment, or rather the defects in the complaint, will be better understood by presenting those portions of the pleading, which embrace the material facts, which are as follows :
The complaint, shows to the Court, that on the 4th day of October, 1860, the Plaintiff was • constable of the town of Sand Creek, in Scott County, and as such constable had possession of a quantity of grain in the stack, viz.: the undivided half of one stack of wheat, &c., of the value of fifty dollars; which property the Plaintiff then held under and by virtue of an attachment to said Plaintiff as such constable, delivered and issued by E. A. Hyderstoedt, Esq., Justice of the Peace of said .county of Scott, in favor of ELasmier LBLer-cher, Plaintiff, against Martin ELniskern, Defendant, for the sum of $30.82, besides costs. That on the said 4th day of October, 1860, a replevin suit was commenced before "William Yarner, Esq., a Justice of the Peace of said County, by said [417]*417Norton against said Plaintiff, for said grain so beld by the said Plaintiff under tbe said attachment, and the said undivided half, &c., was then and there taken and replevied out of the possession of the Plaintiff; that previous to the issuing of the said writ of replevin, and on the said 4th day of October, 1860, the said Norton, as principal, and the said Johnson, as surety, made, executed and delivered to said William Yarner a' bond or obligation in writing under their respective hands and seals, and duly approved of in writing by said Yarner, which said bond is substantially in words and figures following, viz.:
“ Know all men by these presents, that we,’ Ransom Norton and P. D. Johnson, as surety, are held, &c., unto John Clark in the sum of eighty dollars, for the payment of which we bind ourselves, &c.”
The condition of the above obligation is such, whereas th:e above bounden Ransom Norton has this day commenced a replevin suit against John Clark, now if the said Norton shall appear on the 24th day of October, 1860, the return day of the writ, and prosecute his suit to judgment, and shall return the property if a return thereof be adjudged by the Court, and shall pay all costs and damages that may be adjudged against him by the Court, this obligation to be void, otherwise of force and effect.
And the Plaintiff further says and assigns as a breach of the said bond, that the said Ransom Norton did not prosecute his said action to j udgment, but on the contrary thereof, the said suit was on the said 24th day of October, 1860, dismissed, and a nonsuit ordered, and a judgment rendered by said Yar-ner, Justice as aforesaid, against said Norton in favor of - the Plaintiff (the Defendant in that suit,) for one dollar and fifty-five cents costs of suit, whereby an action hath accrued to said Plaintiff, to demand and have of and from the said Defendants the amount of the said demand specified in said attachment, besides costs, which said demand is now in judgment before said Hyderstaedt in said suit in fávor of said Kircher against said Kniskern for the sum of $30,.82 debt, and $6.35 costs of suit, &c.
The Plaintiff does not claim to be the owner of the prop[418]*418erty taken by tbe Defendants in tbe replevin suit, but asserts a special title to it by virtue of .bis office as constable. To maintain the action, it might perhaps have been sufficient to have alleged simply that he was in possession. But he has gone further than this, and stated how be came in possession, and avers that he held the property “by virtue oí an attachment to said Plaintiff as such constable.” The process alon'e, if regular and valid on its face, would be sufficient to protect the officer, when sued in trespass for taking property under i't, even if the justice had not jurisdiction to issue it. But the rule is different when the officer himself, or a party claiming under him, brings suit, to recover the property, or the value, against a stranger intermeddling with the property. In such case he must show not only process regular upon its face, but that the Court or officer had jurisdiction to issue the same. Yates vs. St. John, 12 Wend., 74; Earl vs. Camp, 16 Wend., 562; Dunlap vs. Hunting, 2 Denio, 643. The right of an officer to bring an action for goods levied upon by him, depends upon his special property, and liability over; if the process be void, he acquires no title, and cannot be liable over to the Plaintiff at whose suit the process issued, and consequently cannot and ought not to be permitted to maintain an action for the recovery of the property, or its value.
The Plaintiff entirely fails to show that the Justice who issued the writ of attachment under which he claims, had jurisdiction either of the subject matter, or ,of the parties to the suit. In pleading the process of a Court of inferior and limited jurisdiction, it is necessary to allege every fact requisite to show that such Court had acquired jurisdiction of the subject matter, the parties, and the process, and nothing is presumed in their favor so far as it respects jurisdiction; and the party seeking to avail himself of their process must show that they had jurisdiction affirmatively. Cow. & Hill's Notes to Phil, on Ev., vol. 4, part 2, 110, and cases cited; 1 Denio, 158; 3 Cow., 206. It does not appear that any affidavit was filed with the Justice before issuing the writ of attachment, nor that the case was one of those specified in the statute authorizing writs of attachment. The same objections also to a certain extent, apply to the writ of replevin, as if that was [419]*419unauthorized and void, the surety could not, we think, be held on the bond. And see further, as to what must be alleged by Plaintiff in this case, 1 Hill, 118; 1 Cow. Tr. 398, et seq.; 2 Greenleaf's Ev., sec. 629; 6 Mill, 311; 5 Mill, 194; 3 Coms., 193.
But there is still another objection in the way of the Plaintiff on this complaint. The condition of the bond is that “if the said Norton shall appear on the 24th day oí October, 1860, the return day of the writ, and prosecute his suit to judgment, and shall return the property, if a return thereof be adjudged by the Court, and shall pay all costs and damages that may be adjudged,” &c. Breach, that he did not appear and prosecute. Whereupon, the Plaintiff avers, that an action hath accrued to him to recover the amount of the judgment recovered by Kercher against Kniskern. But the obligation was not to pay this judgment, nor is there anything in the bond itself, or in the pleadings, from which it can even be inferred, that such was the intent of the obligation. There is no ambiguity in the instrument, as to the conditions on which the obligors were to become liable. By the terms of the instrument, in no contingency were they to become liable for the payment of the judgment above named.
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By the Oowrt —
Atwatee, J.
— This was an action commenced in a Justice’s Court, of Scott County, by Clark, the Plaintiff in Error, upon a replevin bond, executed by Norton, and Johnson, The cause was taken by appeal to the District Court of that county, and upon motion of Defendants’ attorney, judgment was rendered for Defendants, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The Plaintiff removes the cause to this Court by writ of error.
The grounds of error urged below in the motion for judgment, or rather the defects in the complaint, will be better understood by presenting those portions of the pleading, which embrace the material facts, which are as follows :
The complaint, shows to the Court, that on the 4th day of October, 1860, the Plaintiff was • constable of the town of Sand Creek, in Scott County, and as such constable had possession of a quantity of grain in the stack, viz.: the undivided half of one stack of wheat, &c., of the value of fifty dollars; which property the Plaintiff then held under and by virtue of an attachment to said Plaintiff as such constable, delivered and issued by E. A. Hyderstoedt, Esq., Justice of the Peace of said .county of Scott, in favor of ELasmier LBLer-cher, Plaintiff, against Martin ELniskern, Defendant, for the sum of $30.82, besides costs. That on the said 4th day of October, 1860, a replevin suit was commenced before "William Yarner, Esq., a Justice of the Peace of said County, by said [417]*417Norton against said Plaintiff, for said grain so beld by the said Plaintiff under tbe said attachment, and the said undivided half, &c., was then and there taken and replevied out of the possession of the Plaintiff; that previous to the issuing of the said writ of replevin, and on the said 4th day of October, 1860, the said Norton, as principal, and the said Johnson, as surety, made, executed and delivered to said William Yarner a' bond or obligation in writing under their respective hands and seals, and duly approved of in writing by said Yarner, which said bond is substantially in words and figures following, viz.:
“ Know all men by these presents, that we,’ Ransom Norton and P. D. Johnson, as surety, are held, &c., unto John Clark in the sum of eighty dollars, for the payment of which we bind ourselves, &c.”
The condition of the above obligation is such, whereas th:e above bounden Ransom Norton has this day commenced a replevin suit against John Clark, now if the said Norton shall appear on the 24th day of October, 1860, the return day of the writ, and prosecute his suit to judgment, and shall return the property if a return thereof be adjudged by the Court, and shall pay all costs and damages that may be adjudged against him by the Court, this obligation to be void, otherwise of force and effect.
And the Plaintiff further says and assigns as a breach of the said bond, that the said Ransom Norton did not prosecute his said action to j udgment, but on the contrary thereof, the said suit was on the said 24th day of October, 1860, dismissed, and a nonsuit ordered, and a judgment rendered by said Yar-ner, Justice as aforesaid, against said Norton in favor of - the Plaintiff (the Defendant in that suit,) for one dollar and fifty-five cents costs of suit, whereby an action hath accrued to said Plaintiff, to demand and have of and from the said Defendants the amount of the said demand specified in said attachment, besides costs, which said demand is now in judgment before said Hyderstaedt in said suit in fávor of said Kircher against said Kniskern for the sum of $30,.82 debt, and $6.35 costs of suit, &c.
The Plaintiff does not claim to be the owner of the prop[418]*418erty taken by tbe Defendants in tbe replevin suit, but asserts a special title to it by virtue of .bis office as constable. To maintain the action, it might perhaps have been sufficient to have alleged simply that he was in possession. But he has gone further than this, and stated how be came in possession, and avers that he held the property “by virtue oí an attachment to said Plaintiff as such constable.” The process alon'e, if regular and valid on its face, would be sufficient to protect the officer, when sued in trespass for taking property under i't, even if the justice had not jurisdiction to issue it. But the rule is different when the officer himself, or a party claiming under him, brings suit, to recover the property, or the value, against a stranger intermeddling with the property. In such case he must show not only process regular upon its face, but that the Court or officer had jurisdiction to issue the same. Yates vs. St. John, 12 Wend., 74; Earl vs. Camp, 16 Wend., 562; Dunlap vs. Hunting, 2 Denio, 643. The right of an officer to bring an action for goods levied upon by him, depends upon his special property, and liability over; if the process be void, he acquires no title, and cannot be liable over to the Plaintiff at whose suit the process issued, and consequently cannot and ought not to be permitted to maintain an action for the recovery of the property, or its value.
The Plaintiff entirely fails to show that the Justice who issued the writ of attachment under which he claims, had jurisdiction either of the subject matter, or ,of the parties to the suit. In pleading the process of a Court of inferior and limited jurisdiction, it is necessary to allege every fact requisite to show that such Court had acquired jurisdiction of the subject matter, the parties, and the process, and nothing is presumed in their favor so far as it respects jurisdiction; and the party seeking to avail himself of their process must show that they had jurisdiction affirmatively. Cow. & Hill's Notes to Phil, on Ev., vol. 4, part 2, 110, and cases cited; 1 Denio, 158; 3 Cow., 206. It does not appear that any affidavit was filed with the Justice before issuing the writ of attachment, nor that the case was one of those specified in the statute authorizing writs of attachment. The same objections also to a certain extent, apply to the writ of replevin, as if that was [419]*419unauthorized and void, the surety could not, we think, be held on the bond. And see further, as to what must be alleged by Plaintiff in this case, 1 Hill, 118; 1 Cow. Tr. 398, et seq.; 2 Greenleaf's Ev., sec. 629; 6 Mill, 311; 5 Mill, 194; 3 Coms., 193.
But there is still another objection in the way of the Plaintiff on this complaint. The condition of the bond is that “if the said Norton shall appear on the 24th day oí October, 1860, the return day of the writ, and prosecute his suit to judgment, and shall return the property, if a return thereof be adjudged by the Court, and shall pay all costs and damages that may be adjudged,” &c. Breach, that he did not appear and prosecute. Whereupon, the Plaintiff avers, that an action hath accrued to him to recover the amount of the judgment recovered by Kercher against Kniskern. But the obligation was not to pay this judgment, nor is there anything in the bond itself, or in the pleadings, from which it can even be inferred, that such was the intent of the obligation. There is no ambiguity in the instrument, as to the conditions on which the obligors were to become liable. By the terms of the instrument, in no contingency were they to become liable for the payment of the judgment above named. If the Plaintiff failed to appear and prosecute his action to judgment, then, they were liable for a return of the property if a return thereof should be adjudged by the Court, and also to pay all costs and damages that might be adjudged against the Plaintiff by the Court. But it does not appear that any return of the property was adjudged by the Court, and consequently there has been no breach of the obligation on that head. Nor does' it appear that any damages were adj udged. The Defendants should have asked for a judgment de retorno, and have had their damages assessed, and a judgment for a return and damages might have fixed the liability of the Defendants upon the instrument. As the Plaintiff has had no return of the property adjudged, the presumption is that he was not entitled to it, and consequently is not liable over to the Plaintiff in the attachment suit. At all events, the only statement tending to show a liability on the part of the obligors, is that judgment was rendered against them for $1.55 costs, in the [420]*420replevin suit. Whether the Plaintiff would be entitled to recover for this item without alleging that the costs are unpaid, may be questionable, but I deem it unnecessary to decide the point, as the action is not for the recovery of these costs. The complaint in its demand for judgment is silent as to these, unless indeed they be included in the general allegation of damages, — an allegation, too general, indefinite, and uncertain, to permit the introduction of'proof of specific damage. The prayer of the complaint is to recover the amount of the judgment rendered by Hyderstoedt, and damages, and it is to this claim the Defendants are required to answer. The complaint does not state facts entitling the Plaintiff to recover that judgment, and- the judgment of the District Court is affirmed.