#### Edward Finckh *v.*Milton B. Evers.

1. In an action for tke recovery of money only, it is error to take judgment by default against a defendant, the summons against whom has no indorsement upon it of the amount claimed, and whose appearance to the action is not otherwise effected.

:2. Whore a bond was executed to a constable, by a principal obligor and surety, reciting that the constable had levied an execution on property claimed by a third person, and containing this condition: “Now if the said constable is kept harmless, and all damages paid by the said bounden, in case said execution be levied on wrong property, *and*the same sold, then these obligations are void: ” Held, That the obligors were bound to indemnify the constable, although the property was replevied from him by the claimant, the owner, before a sale of the property had been made.

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      *8. Held,*also, that in an action, upon this bond, the constable was entitled to recover from the obligors the costs, attorney fees, and expenses in defending the replevin suit, as well as the damages adjudged therein against him, although the principal obligor alone had notice of the commencement and pendency of the replevin suit.

Error to the District Court of Allen county.

Evers was a constable, and having in his hands an execution, levied it upon property claimed by one Eli, a person other than the judgment debtor. The judgment creditor, with Einckh as his surety, then executed and delivered to Evers a bond, which, after reciting the levy, and the claim of Eli,'is conditioned that Evers should be “kept harmless,” and that the obligors would pay “ all damages,” “ in case the execution be levied on wrong property,” “ and the same (should be) sold ” by Evers. Before the day of sale the claimant replevied the property from the hands of the constable. The judgment creditor had notice of the replevin suit, and (with other judgment creditors, who had like levies made on the property,) agreed that the suit should be defended. Evers employed counsel, and defended the suit, but the same was decided in favor of the claimant.

Evers then brought his action upon the indemnity bond, to recover the amount of the judgment rendered against him in the replevin suit, together with his attorney’s fees and expenses in attending the suit. No service of the summons was made upon the judgment creditor, and no indorsement of the amount claimed was made on the summons served upon Einckh. Einckh did not appear, and judgment was taken against him by default, for the full amount claimed.

On error to the District Court this judgment was affirmed, and it is now sought to reverse the judgment of the District Court, and also that of the Common Pleas.

*James Murray,*for plaintiff in error:

I. The court erred in rendering upon default a money *84judgment for any amount whatsoever as against Edward Finckh. Code, sec. 57.

The provision of this section of the code was evidently intended to cause the defendant to be apprised as to whether' any personal judgment was sought to be taken against him, and if so, its amount, so that he might not be put to unnecessary expense in the employment of a lawyer to'ascertain the extent of the judgment sought to be obtained against him. And if he admits to be due the amount indorsed upon the summons, he need give it no further attention.

II. The petition- does not aver any sufficient breach of the Edward M. Pátson & Co. bond as to render Finckh liable-upon it. The condition is, in “ case the execution be levied upon the wrong property *and sold.”*Now, the surety has an undoubted right to stand upon the strict letter of the bond, and having only agreed to be bound in case the property levied upon was the wrong property *and was sold,*and it appearing that the property levied upon was the wrong-property, but that it *was not sold,*a most material part of the condition has *not*been broken, and no liability has accrued.

III. The judgment is erroneous in that it includes matters not covered by the conditions of any of the bonds.

There is certainly no show of reason for claiming to recover for services as a breach of the condition of the bond; the bond does not call upon the constable to defend the replevin suit; it was given before that was instituted and without any reference to it. It does not call upon him to litigate the suit, to employ counsel, or to devote any part of his time or energies to such litigation. The bond was only designed to save him harmless from loss or damages,, necessarily sustained in consequence of his official acts, and in pursuance of the discharge of his official duties.

Welch, J.

It is claimed by plaintiff in error that the judgment in the original action is erroneous, because no-breach of the condition of the bond is shown. The con*85dition of the bond, it is said, was that Evers should be indemnified only in case the “wrong property” was levied on, *and*in case there was a *sale.*¥e think otherwise. The levy, which is recited in the bond, implies the *holding*of the property by the constable, and the intention must necessarily have been that the constable should hold the property till the time of sale, and that he should be indemnified for so doing, as well as for the sale. The substance .of the provision is, that the constable shall not give the property up to Eli, but shall hold and sell it. “ *And*the same (shall be) sold,” may very properly be read, “ *or*the same (shall be) sold.” The intention was to indemnify Evers both for levying on the *‘‘*wrong property,” *“and"*for its. *sale.*,

It is also claimed that the court erred in allowing the costs, attorney’s fees, and expenses incurred by Evers in •the replevin suit, to be included in his judgment. Here we again differ with counsel. One of the obligors had notice of the suit, and had agreed that it should be defended. Clearly this entitled the constable, if he chose to do so, to defend the suit, and recover from the obligors his costs, attorney fees, and expenses. Nothing less than this would be an indemnity according to the terms of the bond; and •notice to one of the joint obligors was sufficient.

A third assignment of error is, that the plaintiff' in error was not legally summoned, the summons served upon him not having the indorsement required by the 57th section of the code. This assignment of error must-prevail. This was an action for money only. The law requires the amount for which judgment is claimed, in all such cases, to be indorsed upon the summons, and provides that judgment shall not be rendered for a larger amount than that so indorsed. Here nothing was indorsed, and judgment was taken for the full amount clainfed in the petition. This was erroneous, and for this error the judgment must be reversed. *Judgment reversed.*

McIlvaine, C. J., White, Rex, and Gilmore, JJ., concurring.