#### Aultman, Miller *&*Company v. William Grimes.

Filed January 16, 1894.

No. 4772.

1. Liability of Sheriffs for Failure of Duty in Serving. Writs. A sheriff who has received for service an order of attachment, and garnishee notices for alleged debtors of the defendant, will not be held liable in an action by the plaintiff in the attachment suit on the sole ground that he procured like notices to be served on the same parties as garnishees in a suit by attachment, in which he is plaintiff against the same defendant, after the receipt of the notices first mentioned and before service thereof.

*8792. -Pleading. Petition examined, and *held*not to state a cause of action.

Error from the district court of Johnson county. Tried below before Broady, J.

*Daniel F.*Osgood, for plaintiff in error.

*8. P. Davidson*and *J. Hall Hitchcoclc, contra.*

Post, J.

This was an action by the plaintiff in error in the district court of Johnson county against the defendant in error, William Grimes, on his official bond as sheriff of said county. The allegations of the petition are substantially as follows: On the 20th day of October, 1888, the plaintiff in error commenced an action in the district court of Johnson county against one George H. Dennett to recover the sum of $1,417, and caused an order of attachment to be issued in said action, and also garnishee notices for Charles M. Chamberlain and the Chamberlain Banking Company, as supposed debtors of. the defendant therein, which writs were, on the day above named, delivered to defendant in error as sheriff for service; that the latter intentionally neglected and refused to serve said writs until the 22d day of October; that in the meantime defendant in error had commenced an action in the county court of said county against said Dennett, to recover the sum of $-, and caused an order of attachment to be issued in said action, and also garnishee notices for the said Charles M. Chamberlain and the Chamberlain Banking Company, which last named notices defendant in error, as sheriff, served on the aforesaid garnishees previous to the service of the notices issued in the action of plaintiff in error; that on the 14th day of December, 1888, said garnishees answered in the action of the defendant in error, admitting that they had in their possession property and money of the defend*880ant Dennett amounting in the aggregate to $2,900, as security for a debt of $2,700 due and owing by the latter to them, whereupon they were ordered to pay into court a sum sufficient to satisfy the judgment of defendant in error, with costs, to-wit, $162.85; that the last named sum was paid into court by the garnishees, in obedience to the order of the county court, on the 5th day of February, 1889, and turned over to the defendant in error; that subsequently the action against Dennett came on for trial in the district court and judgment was rendered therein for plaintiff in error in the sum of $1,417, which remains wholly unsatisfied ; that had defendant in error served said notices in the order in which they were received by him, the said sum of $162.85 would have been due and payable on the claim of the plaintiff; wherefore it is damaged, etc. The answer is in the nature of a demurrer to the petition. A second cause of action set out in the petition need not be noticed, since it is not referred to in the brief of counsel. A trial in the district court resulted in a verdict and judgment for the defendant in error.

Practically the only question argued in this court is that of the sufficiency of the petition. It will be observed that the wrong complained of is not a failure to serve the notices upon the garnishees, but the previous service of like notices in his own case by the defendant in error. It does not appear from the petition that the garnishees have ever answered or been discharged in the action of plaintiff, or that they have not in their possession sufficient property to satisfy the judgment in the district court. The only allegation on the subject is that the garnishees in the action, by defendant in error, in the county court answered that they had in their possession property and money of Dennett of the value of $2,900, to secure an indebtedness of the latter to them of $2,700. It is not insisted that there exists any special provision of statute making a sheriff liable for procuring a writ of attachment to be served in an action to *881which he is a party, although the effect thereof may be to defeat the claims of other creditors; nor is there any claim that the garnishee notices were not served and returned ■within the statutory time. If defendant in error is to respond in damages for the acts complained of, it must be on the ground that plaintiff in error has suffered damage in consequence thereof; but on that question the petition is silent. In order to state a cause of action for the wrong complained of, it should have been alleged either that the amount paid into court to satisfy the judgment of defendant in error exhausted the funds of Dennett in the hands of the garnishees, or that the latter had answered and been discharged in the action against Dennett in the district court; nor is it alleged that Den nett is insolvent, or that the amount of the judgment could not be made on execution against him. There is a further question presented by the record, viz., the validity of the service by defendant in error of the garnishee notices in his own action, which will not be noticed,- as the judgment must be affirmed for reasons already stated.

Affirmed.