23 Iowa 205 | Iowa | 1867
The condition of the replevin bond, drawn in accordance with the requirements of the law, was, that Wilson should appear and prosecute his suit to judgment, return the property if a return should be awarded, and pay all damages and costs which might be adjudged against him. Rev. § 3551. This same section declares that a judgment against the plaintiff, for money, shall go also against the sureties.
The right to appeal by the surety is given, if at all, by section 3917,. whicli provides that any person aggrieved Toy the final judgment of a justice of the peace, may appeal, etc. And now the question is, whether the surety can claim the benefit of this right.
This conclusion results, it seems to me, fairly and necessarily from the language of the bond, and the relation which such a surety sustains to tbe principal. And the same is true if we consider the rights of the oblige'e. The surety’s undertaking is not a primary one.. He agrees to be bound for his principal,%to pay if the principal does .not. The principal is the party to the action, and he is not. If the principal consents to judgment, he is bound by it, in the absence of fraud. So, if he falls to appear, he is equally bound. If he can litigate his principal’s rights in his absence, and without his knowledge, so he could against his express dissent. If he can appeal in his own name, as a matter of legal right, then the principal cannot retire from the litigation, nor settle the same.
All the judges concurring, it is ordered that the ruling below on the motion to dismiss, and the judgment following, be
Reversed.