
    Gates v. Neimeyer et al.
    
      I. Judicial Sale: under void judgment: liability of officer. Where personal property is levied on under an execution issued upon a void judgment, and which is insufficient to protect the officer making the levy, a purchaser from the judgment defendant after the levy obtains a good title to the property, and may maintain an action for its value against the officer in case the latter, with notice of the claim, proceeds to subject the property to the execution without taking an indemnifying bond.
    
      Appeal from Gass Circuit Oowt.
    
    Thursday, June 17.
    On tire 10th day of December, 1877, one Dilla P. Kirkland commenced an action before a justice of the peace against one J. O. Morrison, claiming of him the sum of one hundred dollars, with interest thereon from January 12th, 1877. On the 18th day of December, 1877, judgment was entered in said action against Morrison for the sum of $99.99, and costs and attorney’s fees. On the 19th day of December, 1877, execution issued on this judgment, and the defendant Neimeyer, as constable, on the 31st day of' December, 1877, levied said execution upon nine hundred bushels of corn, the property of said Morrison. After the levy the plaintiff bought the corn from Morrison, and on the 11th day of January, 1878, he served upon the defendant Neimeyer written notice of his ownership. On the 23d day of January, 1878, the defendant Neimeyer sold the corn in question at constable’s sale, without having procured any indemnifying bond. This action is brought upon the constable’s official bond, against him and his sureties, for the recovery of the damages alleged to have been sustained. There was a jury trial, and a verdict and judgment for .the defendants. The plaintiff appeals.
    
      G. M. Failing, for appellant.
    No argument for appellees.
   Day, J.

I. The amount claimed in the action before the justice was more than one hundred dollars, and in excess of the justice’s jurisdiction. The judgment, therefore, was a nullity. Galley v. The County of Tama, 40 Iowa, 49. Upon this branch of the case the court instructed the jury as follows: “The transcript of the judgment introduced in evidence in favor of Dilla P. Kirkland and against J. C. Morrison, which purports to have been rendered by M. Wingate, justice of the peace, on the 18th day of December, A. D. 1877, shows that the same is void, because the said justice had no jurisdiction of the subject matter of the claim therein made by said Kirkland, and against the said Morrison. This being true an execution issued thereon would afford no protection to an officer who attempted to execute the process.” Whether this instruction announces a correct rule of law we need not inquire. It was favorable to appellant, and neither party excepted to it. It must be regarded, for tbe puiposes of tbis case, as containing a correct enunciation of the law.

II. Tbe plaintiff bases bis right to recover upon tbe fact that tbe justice bad no jurisdiction to render tbe judgment, and that hence tbe. execution furnishes no protection to tbe officer. Tbe court instructed tbe jury that tbe plaintiff, in order to recover, must prove “ that tbe corn at tbe time of tbe levy and sale was tbe property of tbe plaintiff.” It was evidently tbis instruction which caused tbe jury to return a verdict for tbe defendants, for tbe plaintiff* admitted, in bis testimony, that be purchased tbe corn after tbe levy. Tbis instruction, we think, is erroneous. If tbe execution afforded tbe officer no protection, then no right was acquired as against tbe execution defendant by tbe levy. If tbe officer bad proceeded to sell tbe property, tbe judgment defendant might have recovered against tbe officer tbe damages sustained. Whatever rights tbe judgment debtor possessed be could, by sale, transfer to bis vendee. It follows that it was not necessary for tbe plaintiff, in order to recover, to prove that be owned the property before tbe levy. For tbe error in tbis instruction tbe judgment is

Reversed.  