Bunt v. Rheum

52 Iowa 619 | Iowa | 1879

Day, J.

i on bond-'iiabiiuyof. — I. The defendant cannot be made liable upon the judgment. He undertook to become liable upon the bond which he executed. The condition of this bond is as follows: “Now, if the said John Mc-Craney will pay all damages which the said defendant may sustain, by reason of the wrongful suing out of the said attachment, then this obligation to be void, otherwise in full force and virtue.” In an action upon this bond it is clear that the defendant might contest both the wrongful suing out of the attachment and the amount of damages sustained. In the action before the justice of the pea'ce both these questions were determined in a suit to which this defendant was not a party, and in which the party against whom judgment was rendered made default. If the defendant may be made liable upon this judgment he is deprived of all opportunity of showing that the attachment was not wrongfully sued out, and also of contesting the amount of damages. We are very clearly of the opinion that the defendant cannot be made liable upon the j udgment.

2 _.__ pleading. II. Section 2618 of the Code provides that the defendant may demur to the petition, when it appears upon its face that the claim is founded on an account or writing as evidence of indebtedness, and neither such writing or account, nor a copy thereof, is incorporated into or attached to such pleading, and no sufficient reason is stated for not doing so. Section 2728 of the Code provides that in an action on a bond with conditions the party suing thereon shall notice the conditions, and allege the facts constituting the breaches relied on. Under these sections the second’ question of law submitted by the court for our determination must be answered in the affirmative.

III. The third question is not embraced in the record. This suit is clearly upon the judgment and not upon the bond. The record does not fairly present the question what the rights of the plaintiff would have been if he had sued upon the bond. As the questions already determined are decisive of the present controversy, and we have no argument for appellee, and but a very brief one from appellant, on this point, citing no authorities, we deem it proper, for the present, to leave this question unanswered.

Reversed.