Stewart ex rel. Ashby v. Ball's Adm'r

35 Mo. 209

• Court: Supreme Court of Missouri
• Decided: October 15, 1864
• Status: Published

Opinion

Dryden, Judge,

delivered the opinion of the court.

The bond contemplated by the 30th section of the act con'cerning executions (R. L. 1855, p. 743) is given in reference to the claim of property preferred to the sheriff under the 26th section of the act. The person of whose claim the sheriff is notified under that section, is “ the claimant,” and none other, who by the 31st section is permitted to sue on the bond in the name of the sheriff, and the claimant who by the 32d section is barred of his action against the sheriff. The law was not intended to render the obligors of the bond answerable to every claimant of the property taken on the execution, but to such claimant only as had given prior notice of his claim.

This construction of the statute can result in no harm to the claimant, for while it may debar him of an action on the bond, it leaves him to his action at common law against the sheriff, free from the bar of the 32d section. The petition in this case failed to show that the claim now preferred was brought to the notice of the sheriff, or that the bond sued on had any sort of reference to the claim of property of either the trustee or cestui que trust, and in the absence of this fact the petition shows no cause of action.

The demurrer was properly sustained. Let the judgment be affirmed ;

the other judges concur.