Appellee sued appellant Unsell, as constable, and the sureties on his official bond; also A. J. Katz Co., J. A. Smith and Arthur Darvin on an indemnity bond, executed and delivered to said Unsell to indemnify him against loss for the levy of a writ of attachment issued in a suit of Katz Co. v. Davis Bruce. The writ of attachment was levied on property claimed by appellee. The suit is for damages alleged to have accrued to appellee for the wrongful seizure of plaintiff's property. Upon trial judgment was rendered against all of the defendants.
Exceptions were filed to the petition, which were overruled, and the contention is made here that suit was predicated in part upon the bond of indemnity when no recovery could be had by plaintiff on said bond. We sustain this contention. In the petition the bond is declared on and a recovery sought thereon. No allegations are made that said levy was induced by the giving of said bond. Plaintiff had no right of action on said bond. His action was against the makers thereof by reason of its making inducing the levy, thereby rendering the makers trespassers. In the case of Cabell v. Shoe Co., 81 Tex. 104, where the United States marshal and his indemnitors were sued, Chief Justice Stayton said, "The liability of the indemnitors to the marshal is upon their bond, but their liability to the persons whose property was seized is that of trespassers"; and this is the holding of other decisions of our state.
For the reason that the allegations of plaintiff's petition seek to hold the indemnitors liable, without showing that the levy was induced thereby, and the court having overruled exceptions thereto, the judgment is reversed and the cause remanded. *Page 35
ON REHEARING. The appellee, in motion for rehearing, asks that we affirm the judgment as to appellants Unsell and official sureties and Katz Co., and reverse and dismiss as to sureties on the indemnity bond. We see no reason why this should not be done. There is no error shown as to Unsell and official bondsmen and Katz Co. The error in the judgment is as to the sureties on the indemnity bond. They were made parties by the appellee, and no recovery was sought against them by Unsell, and a reversal and dismissal as to them in no way affects the other appellants.
The motion for rehearing is granted, and the judgment is affirmed as to Unsell and his official bondsmen and Katz Co., and reversed and cause dismissed as to the sureties on the bond of indemnity.
Filed November 19, 1904.
Affirmed in part and reversed and dismissed in part.