Hall, J.
The court held that the plaintiff was not precluded from bringing this action because he made [381]*381claim to the property and his claim was tried and disposed of in the manner provided by the statute; that the plaintiff was not for said reasons 'confined to his remedy on the idemnifying bond given by the execution creditor.'
The court also held that the judgment of the circuit court upon the question of the plaintiff ’ s ownership of the property was, as to such question, res adjudicates upon both the defendants in this suit.
The court held that evidence of what the property sold for at the sheriff ’ s sale was not competent upon the question of the value of the property. As to the measure of damages the court gave the folio wing instruction :
“2. The court instructs the jury that in determining the value of the property' described in plaintiff ’ s petition, they will assess the same at such sum as they shall believe from the evidence it was reasonably worth, taking into consideration the purpose for which the same was intended to be used, in the building where the same was at the time of the seizure by defendants, and not what plaintiff paid for it, nor what it was sold for by defendant, Springer.”
The defendant complains of the action of the court in each of the particulars named.
By section 2366, Revised Statutes, it is provided that, when any other than the’ debtor in the execution shall, in writing, verified by aifidavi t claim personal property seized under execution, the officer making the seizure shall at once deliver a copy of .the claim' to the execution creditor or his attorney of record ; and that,unless the execution creditor, within a reasonable time thereafter, execute and deliver to said officer an indemnu fying bond, such as. provided in the statute, the officer shall abandon such levy and release the property to the claimant. Provision is also made for the claimant retaining possession of the property by giving bond. It is further provided-by said section • as '-'follows : “Such bond may be sued on-at the instance of-any- person in* [382]*382jured, in the name of the state to the use of such person, for any breach of the condition of such bonds ; and the damage which such person shall sustain shall be recovered thereon, if the execution creditor shall give bond as above provided.”
By section 2367, Revised Statutes, it is provided that, “The officer shall return the claim and such bond or bonds as shall have been taken by himto the court to which the execution may be returnable, on or before the first day of the next term thereof, and the clerk shall enter the matter upon the docket, as near as it may be as civil cases are docketed, and the matter shall, unless continued for cause, be tried at the term at which the claim is returned. The execution creditor shall answer or demur to the claim returned by the officer, on or before the first day of the term, and the claimant may reply to the answer within such time as may be directed by the court, and all proceedings in relation to such claim shall be governed, as far as practicable, by the law relating to pleadings and practice in civil actions. If the execution creditor shall fail to answer or demur, as herein provided,, or the judgment shall be in favor of the claimant, the court shall, by its order, direct the officer to release such property to the claimant, and shall enter judgment for costs against the execution creditor and his sureties. * * * ”
The proceeding thus provided by the statute for the trial of the rights of property is a judicial proceeding, and a judgment therein is as conclusive as a judgment in any other judicial proceeding.
As said in the State ex rel. v. McBride (81 Mo. 354), “ The act provides for the pleadings in respect to the claim by answer, demurrer and reply. It, also, directs the nature and form of the judgments to be rendered. * * * It evidently contemplates a special suit, or proceeding upon the claim returned into court, which is made to take the place of a petition, to be answered or demurred to like any other statement of a cause of action.”
[383]*383And as said in Houx v. Shaw (18 Mo. App. 49), the trial is “a formal trial in court ofthe rights of property.”
In State ex rel. v. McBride, it was held that a claim made by one, under the provisions of the statute of 1879, did not deprive him of his remedy against the sheriff on his official bond. In discussing the matter Martin, C., who delivered the opinion of .the court said: ■“ Indeed, the statute does not purport to make this summary remedy exclusive of all other remedies, for in section 2366, it is provided that ‘ such bonds may be sued on at the instance of any person injured in the name of the state to the use of such person for any breach of the condition of such',bonds.’ While it thus appears that the summary, or supplemental proceeding on execution does not exclude an independent action on the bond, the right of action so permitted on the bond does not purport to be exclusive of other forms of action, and resort to it is not obligatory on the claimant. The section provides only that 1 such bonds may be sued on.' "
It will be noticed that the concluding words of section 2366, touching suits upon the bonds provided for therein, 11 and the damage which such person shall sustain shall be recovered thereon, if the execution creditor shall give bond as above provided,” are not mentioned by Martin, C., in his opinion. Those words would seem to be so express and exclusive in their nature as to limit the remedy of the claimant to a suit upon the bond, given by the execution creditor, for the damages sustained by the levy and seizure. But the supreme court, in the case mentioned, has plainly held otherwise, and we, therefore, are bound to so hold. We cannot assume that the supreme court overlooked the concluding words of section 2366.
The statutory proceeding, had for the trial of the rights of property, was a judicial proceeding, but it did not, of course, bind any one but the parties thereto ancj, their privies.
[384]*384The claimant and the execution creditor were, of course, parties. And if it be true that the statutory-remedy which the claimant had elected to pursue did not exclude him from maintaining afterwards an action for trespass against the sheriff, we cannot perceive why the sheriff was not also a party to the said proceeding. Under such construction of our statute, the issue made in the said proceeding ivas made to protect the sheriff in his levy on the goods claimed by the claimant, and the question for trial was the ownership by the claimant of the goods and the sheriff ’ s right to levy thereon. In other words, the sheriff’s right to seize and hold the goods was on trial in a legal proceeding for that purpose, and he was a party to the proceeding, for he must be considered a party to a proceeding in which his rights were legally litigated and determined.
The sheriff may not have been, strictly speaking, a party to the record, but he was a real party in interest and that suffices. State to use v. Coste, 36 Mo. 438.
The claimant would have been bound by a judgment against him not only as to the execution creditor, but also as to the sheriff, and the sheriff was bound by the judgment in the claimant’s favor.
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Hall, J.
The court held that the plaintiff was not precluded from bringing this action because he made [381]*381claim to the property and his claim was tried and disposed of in the manner provided by the statute; that the plaintiff was not for said reasons 'confined to his remedy on the idemnifying bond given by the execution creditor.'
The court also held that the judgment of the circuit court upon the question of the plaintiff ’ s ownership of the property was, as to such question, res adjudicates upon both the defendants in this suit.
The court held that evidence of what the property sold for at the sheriff ’ s sale was not competent upon the question of the value of the property. As to the measure of damages the court gave the folio wing instruction :
“2. The court instructs the jury that in determining the value of the property' described in plaintiff ’ s petition, they will assess the same at such sum as they shall believe from the evidence it was reasonably worth, taking into consideration the purpose for which the same was intended to be used, in the building where the same was at the time of the seizure by defendants, and not what plaintiff paid for it, nor what it was sold for by defendant, Springer.”
The defendant complains of the action of the court in each of the particulars named.
By section 2366, Revised Statutes, it is provided that, when any other than the’ debtor in the execution shall, in writing, verified by aifidavi t claim personal property seized under execution, the officer making the seizure shall at once deliver a copy of .the claim' to the execution creditor or his attorney of record ; and that,unless the execution creditor, within a reasonable time thereafter, execute and deliver to said officer an indemnu fying bond, such as. provided in the statute, the officer shall abandon such levy and release the property to the claimant. Provision is also made for the claimant retaining possession of the property by giving bond. It is further provided-by said section • as '-'follows : “Such bond may be sued on-at the instance of-any- person in* [382]*382jured, in the name of the state to the use of such person, for any breach of the condition of such bonds ; and the damage which such person shall sustain shall be recovered thereon, if the execution creditor shall give bond as above provided.”
By section 2367, Revised Statutes, it is provided that, “The officer shall return the claim and such bond or bonds as shall have been taken by himto the court to which the execution may be returnable, on or before the first day of the next term thereof, and the clerk shall enter the matter upon the docket, as near as it may be as civil cases are docketed, and the matter shall, unless continued for cause, be tried at the term at which the claim is returned. The execution creditor shall answer or demur to the claim returned by the officer, on or before the first day of the term, and the claimant may reply to the answer within such time as may be directed by the court, and all proceedings in relation to such claim shall be governed, as far as practicable, by the law relating to pleadings and practice in civil actions. If the execution creditor shall fail to answer or demur, as herein provided,, or the judgment shall be in favor of the claimant, the court shall, by its order, direct the officer to release such property to the claimant, and shall enter judgment for costs against the execution creditor and his sureties. * * * ”
The proceeding thus provided by the statute for the trial of the rights of property is a judicial proceeding, and a judgment therein is as conclusive as a judgment in any other judicial proceeding.
As said in the State ex rel. v. McBride (81 Mo. 354), “ The act provides for the pleadings in respect to the claim by answer, demurrer and reply. It, also, directs the nature and form of the judgments to be rendered. * * * It evidently contemplates a special suit, or proceeding upon the claim returned into court, which is made to take the place of a petition, to be answered or demurred to like any other statement of a cause of action.”
[383]*383And as said in Houx v. Shaw (18 Mo. App. 49), the trial is “a formal trial in court ofthe rights of property.”
In State ex rel. v. McBride, it was held that a claim made by one, under the provisions of the statute of 1879, did not deprive him of his remedy against the sheriff on his official bond. In discussing the matter Martin, C., who delivered the opinion of .the court said: ■“ Indeed, the statute does not purport to make this summary remedy exclusive of all other remedies, for in section 2366, it is provided that ‘ such bonds may be sued on at the instance of any person injured in the name of the state to the use of such person for any breach of the condition of such',bonds.’ While it thus appears that the summary, or supplemental proceeding on execution does not exclude an independent action on the bond, the right of action so permitted on the bond does not purport to be exclusive of other forms of action, and resort to it is not obligatory on the claimant. The section provides only that 1 such bonds may be sued on.' "
It will be noticed that the concluding words of section 2366, touching suits upon the bonds provided for therein, 11 and the damage which such person shall sustain shall be recovered thereon, if the execution creditor shall give bond as above provided,” are not mentioned by Martin, C., in his opinion. Those words would seem to be so express and exclusive in their nature as to limit the remedy of the claimant to a suit upon the bond, given by the execution creditor, for the damages sustained by the levy and seizure. But the supreme court, in the case mentioned, has plainly held otherwise, and we, therefore, are bound to so hold. We cannot assume that the supreme court overlooked the concluding words of section 2366.
The statutory proceeding, had for the trial of the rights of property, was a judicial proceeding, but it did not, of course, bind any one but the parties thereto ancj, their privies.
[384]*384The claimant and the execution creditor were, of course, parties. And if it be true that the statutory-remedy which the claimant had elected to pursue did not exclude him from maintaining afterwards an action for trespass against the sheriff, we cannot perceive why the sheriff was not also a party to the said proceeding. Under such construction of our statute, the issue made in the said proceeding ivas made to protect the sheriff in his levy on the goods claimed by the claimant, and the question for trial was the ownership by the claimant of the goods and the sheriff ’ s right to levy thereon. In other words, the sheriff’s right to seize and hold the goods was on trial in a legal proceeding for that purpose, and he was a party to the proceeding, for he must be considered a party to a proceeding in which his rights were legally litigated and determined.
The sheriff may not have been, strictly speaking, a party to the record, but he was a real party in interest and that suffices. State to use v. Coste, 36 Mo. 438.
The claimant would have been bound by a judgment against him not only as to the execution creditor, but also as to the sheriff, and the sheriff was bound by the judgment in the claimant’s favor. Had the sheriff retained possession of the goods until the rendition of the judgment, he would have been bound by the judgment and would have been obliged to release the goods to the claimant. The sheriff was not liable simply because he sold the goods under the execution prior to the judgment aforesaid, but he was not in any better position by reason' thereof. He was, notwithstanding the sale of the goods, bound by the said judgment. The judgment was by the statute intended to settle the rights of the claim: ant, the sheriff and the execution creditor, involved in the seizure of the goods under the execution, so far as they depended upon the claimant’s .ownership of the goods, and the judgment-,.in so far as-concerns "the clairn'ant’s ownership of the goods, was res adjudicata. upon the claimant, the sheriff and the execution creditor.
[385]*385In this case there were no aggravating circumstances. The measure of damages was the value of the property at the time it was seized by the sheriff, with legal interest thereon up to the trial. Walker v. Borland, 21 Mo. 292 ; State to use v. Smith, 31 Mo. 572 ; Spencer v.Vance, 57 Mo. 430; Seibel v. Siemon, 72 Mo. 531.
Not only is it conceded by counsel for plaintiff that the measure of damages is as thus stated, but it is contended by them that this is so. The contention is made to support the action of the court refusing to permit the defendants to prove what the sheriff sold the goods for. “The proof of value is generally by the judgment or opinion of witnesses. If the article in question has a market value, that will usually control as the best evidence of its value. If this test has been applied to it by actual sale of it, the fact may be proved as evidence of its value. It is not conclusive, but tends to show its value, and in the absence of other evidence would suffice. Even the amount the goods cost is admissible for the same purpose. * * * So the amount sold for at auction has been admitted.” 2 Sutherland on Damages, 375-6.
Had the market value of the goods at the time of the conversion been susceptible of such definite proof as the market valúe of staple articles of merchandise is, evidence of the market value of the goods at any other time, either prior or subsequent to the conversion, would not have been competent. But the market value of the goods was not susceptible of such proof. Proof of the value of such goods, “when worn, can scarcely be ascertained except by reference to the former price and the extent of depreciation.” Luse v. Jones, 39 N. J. Law, 709.
The price of new goods of the kind in question was competent as a basis for comparison. Most of the goods had been purchased by the plaintiff as second-hand goods in the first place. The price paid by him was not [386]*386■conclusive, either for or against him, but it was competent as one item of evidence tending to show the value • of the goods at the time of the purchase as a basis for ■ comparison, according as the goods had improved or deteriorated in value. And the price for which the sheriff • sold the goods was admissible as some evidence -of the value of the goods when seized ; it was not conclusive, but it was one circumstance going to show the said value of the- goods. Both the price paid by the plaintiff and the price obtained by the sheriff were for the jury’s consideration and entitled to such weight as they might have seen proper to give to those facts under all the circumstances in evidence. 1 Sutherland on Damages, 796-799, and cases cited.
The court erred in refusing to permit the defendant to prove what the sheriff sold the goods for, and we think that the court more seriously erred, especially under the evidence in this case, in telling the jury that they might, in determining the value of the property, take into consideration “ the purpose for which the same was intended to be used in the building where the same was, at the time of the seizure by defendants.” Such purpose did not in any way affect the real value of the property. For the purpose mentioned the property might have been as valuable as new property of the same kind, but yet the measure of damages would not on that account have been the value of such new property. The true test, the correct measure of damages, as we have said, was the value of the property at the time of the seizure, and by value we mean the value of the property as chattels, and not as fixtures in the building used for the purposes of a saloon. The question was, not what was the value of the property as such fixtures, but what was the value of the property as chattels, in the market. Had the instruction alluded to not contained the objectionable words, it would have read as follows :
[387]*387“ The court instructs the jury that in. determining 'the value of the property described in plaintiff ’ s petition, they will assess the same at such sum as they shall believe, from the evidence, it was reasonably worth, and not (at) what plaintiff paid for it, nor what it was sold for by defendant, Springer.”
And if the court had given the instruction in that form, and had also given in connection with it the seventh instruction asked by the defendants and rejected by the court, the court would have declared the law as we think it should have been declared. The instruction referred to was as follows:
“7. The court instructs the jury that in arriving at the reasonable value of the goods in question, they may take into consideration the price which the goods .brought, both at private and public sale, as well as all the facts and circumstances given in evidence.”
Judgment reversed and cause remanded.
Ellison,J., concurs; Philips, P. J., not sitting.