Stein v. . Cozart

Citations

• 30 S.E. 340
• 122 N.C. 280
• 1898 N.C. LEXIS 245

Syllabus

<p>Attachment — Intervenor-—Action on Indemnifying Bond —Estoppel—Practice.</p> <p>1. Where property was seized and sold by a sheriff as the property of I under attachment proceedings and, upon the intervention of A, the latter was adjudged to be true owner and entitled to receive the proceeds of salé paid into court by the sheriff, less his costs and expenses, Held that A was not estopped thereby from recovering in a separate action against the sheriff and his sureties the value of such property, less the amount so received by her as in-tervenor in the attachment suit.</p> <p>2. A sheriff, who in attachment proceedings wrongfully seizes and sells property which is subsequently adjudged to belong to an in-tervenor, cannot retain the costs and expenses of the seizure and sale.</p> <p>3. One, w'ho intervened in attachment proceeding and, upon being adjudged owner of the property seized, brought an action against the sheriff and the makers of an indemnifying bond to recover the property or its value, is not entitled to recover, in such action, the per diem and mileage of a witness, in her behalf, in the suit in which she intervened. Such costs should have been taxed in the suit in which she intervened.</p> <p>4. Under the present procedure it is not necessary for the owner of property wrongfully seized and sold by a sheriff to first obtain a judgment against the sheriff and then institute another action on his indemnifying bond; on the contrary, the rights of all the parties can be adjudged in a single action against the sheriff and the maker of the indemnifying bond.</p>