National Surety Co. v. Fry Co.

Citations

• 86 Wash. 118
• 149 P. 637
• 1915 Wash. LEXIS 1186

Syllabus

<p>Pleading — Answer—Affirmative Defense. It is not error to sustain a demurrer to an affirmative defense when all the issues presented by the affirmative answer were sufficiently presented by the denials in the answer proper.</p> <p>Abatement — Wrongful Attachment — Defenses. It is no defense to a wrongful attachment that the property had already been levied upon and was held upon a prior attachment for a claim greater than the value of the property; since the prior attachment might either be released or unsustained.</p> <p>Indemnity — Judgment Against Indemnitee — Conclusiveness — Sheriffs — Indemnity Bond. Where a sheriff is sued for wrongful attachment, and gives the indemnitors notice and full opportunity to defend, in the absence of fraud or mistake, judgment against the sheriff is conclusive as between him and the indemnitors on the question of the sheriff’s liability and the facts necessary to sustain it; but where two writs were in the hands of the sheriff, judgment against the sheriff would not be conclusive that the writs had been levied, since levy of both writs was not essential to the judgment.</p> <p>Sheriffs — Indemnity Bond — -Actions-—Evidence of Levy — Sufficiency. In an action upon an indemnity bond, given to protect the sheriff upon the levy of a writ of attachment, the evidence sufficiently shows that the sheriff made the levy of the writ upon property already levied upon and in possession under a prior writ, where the uncontradicted testimony of the deputy sheriff was to the effect that plaintiff’s attorney, upon demand on the sheriff for the return of the goods, directed the sheriff to hold the goods under plaintiff’s writ in case the prior writ was released; especially where there was no evidence to overcome the presumption that the sheriff did his duty when the writ was delivered to him with demand for its levy, together with the bond of indemnity for his protection.</p> <p>Indemnity — Judgment Against Indemnitors — Conclusiveness— Sheriffs