| Idaho | Jan 15, 1878
delivered tbe opinion;
This suit was instituted in tbe district court of Ada county by tbe respondent against tbe appellant, Margaret Bay and J. 0. Sims, on a joint and several injunction bond executed by tbem, in tbe penal sum of two thousand dollars, in wbicb a judgment was obtained against tbe appellant on tbe twenty-sixth day of March, 1877, for two thousand dollars and costs, there having been no service of summons upon tbe other defendants. Prom tbe judgment and from tbe order refusing a new trial, tbe case is brought here by appeal.
There are numerous errors assigned, for wbicb tbe appellant claims that tbe judgment should be reversed, wbicb we will proceed to notice in their proper order: 1. In overruling tbe demurrer to the complaint. 2. In bolding that tbe complaint stated facts sufficient to constitute a cause of action. Tbe latter specification is subdivided as follows:
1. Because there is no sufficient allegation in said complaint of plaintiff’s ownership of tbe property alleged to have been received by tbe sheriff and converted to tbe use of tbe defendant Margaret Bay, and for other purposes.
2. Because there is no allegation of tbe insolvency of tbe defendant Margaret Bay, and nothing to show that plaintiff Bangel might not have recovered tbe value of tbe property so seized by tbe sheriff by bringing bis suit therefor, after tbe removal of tbe prohibition of said plaintiff to bring bis suit, by tbe final dissolution of tbe injunction.
3. Because tbe said plaintiff has not exhausted tbe remedies required to be applied before tbe defendant Levy could be made legally answerable upon tbe bond in suit.
4. Because said defendant' Levy’s liability as a co-surety on said bond could not attach, if at all, wbicb is not conceded, until it was either averred or alleged in said com
5. Because two causes of action were improperly united.
As these objections will go to the foundation of the action, we will proceed to consider them in the order in which they are taken.
First, that there is no sufficient allegation, etc. After stating the execution of the bond by the obligors, the determination of the injunction suit, and the judgment of the district court that the plaintiff Margaret Bay was not entitled to the injunction, the complaint alleges that plaintiff was damaged by the injunction in the sum of two thousand dollars, as follows: cash paid J. Brumbact, attorney for plaintiff in the injunction suit, three hundred dollars; cash paid F. E. Ensign, attorney for plaintiff, in the sum of two hundred dollars; cattle sold by Margaret Bay after the,service of the injunction, of the value of six hundred and sixty-five dollars, and cattle sold by William Bryon after the service of the injunction, of the value of eight hundred and thirty-five dollars, and interest on the cattle sold, twro hundred dollars. It may be conceded, so far as the question thus presented is concerned, that there is no sufficient allegation of property in the cattle, in the complaint, to entitle the plaintiff to a recovery of their value; but as the plaintiff is entitled to his action for the recovery of the fees paid by him to his attorneys in the injunction suit, and which were properly alleged in the complaint, the demurrer going to the whole cause of action and not to that portion of it, it was properly overruled. Had the defendant wished to take advantage of the defect complained of, he should have demurred to the complaint because it was ambiguous or uncertain in that respect. Had this been done, the court could have required the plaintiff to amend the complaint, or precluded him from offering any proof as to the cattle.
The second reason assigned under this head is not tenable. The condition of the bond sued on, was that Margaret Bay as principal, and J. C. Sims and D. Levy as sureties,
If the principal should pay the damages, the sureties would of course be relieved from liability, but a suit against a principal is not necessary to determine the liability of the sureties.
The obligee is at liberty to bring his suit against the principal, but he is not obliged to do so, with a view to determine her insolvency, before proceeding against either of the sureties. Nor is the fact that the plaintiff could have brought suit to recover the property or the value thereof against the sheriff or other persons holding it after the prohibition was removed a sufficient ground of objection to the action. The plaintiff had his election to bring his suit for the recovery of the property or its value, against any one who had converted it to his use, after the prohibition was removed, or on the bond, and having chosen the latter, it does not lie in the mouth of the defendant to complain.
The third and fourth reasons come within the same principle. It is further claimed that the complaint is bad, because the plaintiff united two causes of action, to wit: a claim for the amount paid Brumback, and the amount paid Ensign, in the same action. It seems hardly necessary to say that the amount paid to these two attorneys, being for fees in the injunction suit, constituted but one cause of action, and was recoverable as part of the damages sustained by the injunction.
The third specification of errors is as follows: The court erred in overruling said demurrer, on the various grounds
We have disposed of the questions arising upon two of the grounds of demurrer, to wit, that several causes of action are improperly united, and that the complaint does not state facts sufficient to constitute a cause of action, and it only remains to notice, under this specification, the remaining grounds of objection set up by the demurrer. The first is that the complaint is ambiguous, unintelligible, and uncertain in this: plaintiff avers that defendants made and filed their bond in suit, and in charging defendants for cattle sold by Wm. Bryon. As it was proper for the plaintiff to sue on the injunction bond and allege as a portion of the damages for the breach thereof, that Bryon sold cattle that he was restrained from recovering by the injunction, and as the plaintiff has done this, though in not very apt terms, it must be confessed, it is difficult to see that the complaint was objectionable on this point. The demurrer, we think, on this ground, was quite as ambiguous and unintelligible as the complaint, and failed to point out very clearly any proper reason for the objection.
The second is, that there was a misjoinder of parties defendant. This general statement, jmder the old rules of pleading, would be bad; for it is in substance a plea in abatement, and such plea must bo so pleaded as to enable the plaintiff, in a subsequent suit for the same cause, to supply the defect or avoid the mistake upon which the plea is founded, or, in other words, it must be so framed as to give the plaintiff a better suit. Under our statute, there is no ground for any such objection. The second clause of section 32, chapter 33, of the civil practice act, page 86, is as follows: If the action be against defendants, severally liable, he (the plaintiff) may proceed against the defendants 'served, in the same manner as if they were the only defendants. This the plaintiff has done, and we can not see that the complaint was defective in this respect.
The fifth error assigned is, that the verdict is against the evidence in the ease, and insufficient to justify the verdict in this: 1. There was no sufficient evidence of a demand for the property alleged to have been converted. It is sufficient to say on this point that the action is upon the bond, and not an action for the recovery of the property. There is no obligation imposed upon the plaintiff to sue for the property, and as a consequence he was not put to his demand before bringing liis suit upon the bond. Even were it otherwise, and had such suit been brought, no demand would have been necessary, for the possession of it by Mrs. Bay and the sheriff was tortious ab initio as against Dangel.
2. There was no sufficient evidence of the execution of the bond sued on on the part of the defendant D. Levy. The answer to this is, there was no denial in Levy’s answer of its execution. The defendant says it was never fully executed, and then proceeds to show that he was induced to sign the bond by fraudulent representations, but by whom made it does not appear.
3. There was no evidence showing that plaintiff could not have recovered the amount sued for, or that it could not have been collected of Margaret Bay, defendant, who, as
4. Because tbe evidence shows that the plaintiff Dangel could have no title to tbe property in dispute, because a judgment unreversed was proven, where tbe title to said property was found in said defendant, Margaret Bay, at tbe commencement of this suit, and is still in her. On an appeal to this court from the judgment of tbe district court in tbe case of Margaret Ray v. Henry T. Ray and Ferdinand Dangel, which was brought to carry_into effect tbe decree of tbe district court in tbe divorce suit of Margaret Ray v. Henry T. Ray, in which it was adjudged that tbe property in controversy was not in Dangel, or rather was in Bay and wife, this court decided that such decree was void so far as it affected tbe right of Dangel to tbe property, because be was not a party to tbe proceedings in the divorce suit. Tbe fact that be took an appeal to this court from tbe judgment of tbe district court in this case did not have tbe effect to keep tbe title to tbe property adjudged to her in tbe divorce suit in Margaret Bay, until tbe decision in this court was bad.
Tbe judgment in,this court was that she never bad any title to it under tbe decree in tbe divorce suit as against Dangel, and as a consequence, she could assert none under it as against Dangel at any time. Dangel, instead of appealing tbe case, could have proceeded at once against her for tbe recovery of the cattle, and was about to do so, but was restrained by tbe district court. In such a proceeding tbe judgment of tbe district court in tbe divorce suit could not have been pleaded in bar of tbe action, for it was a mere nullity, and would have been so regarded bad it been set up as a defense.
5. Because tbe evidence on tbe face of tbe bond tended to show a fraud against tbe defendant Levy, and tbe verdict is against tbe evidence.
It is claimed that between tbe signature of J. C. Sims on tbe bond and tbe seal affixed to it, there bad been an erasure of the figures $1000, after Sims bad signed it,
The statute finds that on granting an injunction, the court or judge shall require, except where the people of the territory are a party plaintiff with sufficient sureties, to the effect that the plaintiff will pay to the party enjoined such damage, not exceeding an amount to be specified, as such party may sustain by reason of the injunction,' if the court finally decide that the plaintiff was not entitled thereto. Upon an inspection of the bond there seemed to have been something erased at the place indicated, but what had been erased, by whom erased, and at what time, there was nothing to show. Conceding, however, that these figures had been placed there before Sims signed the bond, and had been subsequently erased, we can not conceive that this could possibly have changed the legal effect of the bond, or limited the liability of Sims to one thousand dollars. The execution of the bond being shown, the court could only look to the body of. it to determine its legal character. If the bond was signed by Sims, the mere affixing these figures to his signature could not lessen his liability, because it was fixed by the terms of the bond.
The sixth, seventh, eighth, and ninth specifications under this head, to wit, that the verdict is against the evidence; that there was not sufficient evidence of the value of the property, beyond the sum of one thousand five hundred dollars; that there was not sufficient evidence to show that plaintiff was entitled to recover; and that the verdict is against the weight of evidence, have been heretofore considered, and need no further answer.
The sixth assignment of error, that is, that the court erred in overruling defendant’s motion for a new trial, be-causo, first, there was no sufficient proof of the execution of the bond by the defendant Levy, has been already considered.
The second ground of error under this assignment, to wit, because a fraud, and the facts constituting the same,
Laying out of view entirely the question whether the facts above pleaded might be set up by way of defense, by Sims himself, in a suit brought against him upon the undertaking, we are clearly of the opinion that the answer does not show fraud against Levy. It is to be observed that injunction bonds are procured by the plaintiff in injunction suits, and not by the defendant. He has no. agency in the matter, and is merely a passive instrument in the hands of the law, and is obliged to accept the bond when properly executed and approved by the judge. In this sense, he in no wise became a party to the fraud, and can not be held responsible for any false representations not made by himself, by which a party is induced to sign the bond. If, as is claimed, Sims did not justify in a greater sum than one thousand dollars, it is not pretended that the plaintiff knew this fact, or did anything to deceive the defendant. Upon the face of the bond, and by the certificate of the justice of the peace who took Sims’ justification, it appears that he became responsible for the full sum of two thousand dol
But the presumption is, that if any erasure was made, it was done with the full knowledge of Sims and the defendant, and with their consent, before the bond was submitted to the judge for his approval, and filed in the case. In all undertakings where sureties are required, where the penal sum does not exceed two thousand dollars, the sureties can not justify in a less sum than the penalty, and it must follow, that if the bond had been presented for approval, with the limited liability claimed for Sims, the judge would have required the restrictive clause to be stricken out as not conforming to the requirements of the statute.
The conclusive answer to the objection is, as has been already seen, that it was an immaterial alteration, and did not affect the validity of the bond as to any of the parties to it. This we believe disposes of all the objections raised in the assignment of errors, under this head, except those arising from the instructions given and refused, to which exceptions were taken.
It is alleged that the court erred in giving instructions 1, 2, 3, 4, and 5, for the plaintiff, but as the defendant has only taken exceptions to the first and second, these only will be considered. The first is as follows: Dangel is not affected in his rights by any process issued in the suit of Margaret Ray v. Henry T. Ray. He could not be made a party, by proceeding subsequent to judgment. The meaning of this instruction is somewhat obscure, but it in effect charged the jury, that the plaintiff could not be bound by the judgment or decree in the divorce suit of Ray v. Ray, which adjudged the property in controversy to be in Bay and wife, against the plaintiff, by a suit brought subsequently, to validate and enforce the decree in the divorce suit, in which he was not a party. There was no error in giving this instruction, for it can not be pretended that the plaintiff was or could be precluded from asserting his right to the cattle in controversy, by any judgment rendered in a
The second instruction, to wit, if the plaintiff, Dangel, was the owner of the cattle seized by the sheriff of Ada county, and was not a par.ty to the suit of Margaret Ray v. Henry T. Ray, he is entitled to recover the value of all cattle sold either by the sheriff of Ada county or Mrs. Eay, subsequent to the issuing and service of the injunction in the case of Margaret Ray v. F. Dangel and Henry T. Ray, excepting such as he may have subsequently obtained possession of without purchasing them, is fully sustained by the evidence in the case. It may be conceded for the purpose of this instruction, that the complaint did not allege property in the cattle sold to be in the plaintiff, but the defendant treated this question as an issue, and suffered the plaintiff, without objection, to introduce evidence of his title thereto and the value thereof, anu it is too late to raise such objection, for the first time in this court, the evidence having gone to the jury; it was proper to instruct them as to the law applicable thereto. ■ Indeed, it would have been erroneous to have refused to charge upon a question raised by the evidence. (See Fisk v. Bailey, 51 N. Y. 150; Comstock v. Doyle, 3 How. Pr. 97.)
It is urged that there was error in refusing defendant’s .fifth instruction, which isas follows: The plaintiff is not entitled to recover in this action for the cattle, if any, that returned to plaintiff Dangel and were retained by him, even if they had been driven away and sold, for he is only entitled to recover for actual loss and damage during the existence of the injunction.
As the plaintiff’s second instruction covers the same point, it was unnecessary to repeat it, and there was no error in refusing it. The sixth instruction asked by the defendant and refused by the court is as follows: The bill of sale from Henry T. Eay to Ferdinand Dangel is only prima facie evidence of title, and at most conveys to the purchaser such right and title as the vendor then had to the property con
Aside from the evidence of title contained in the bill of sale, the proof shows that the property sold by the sheriff, for the recovery of the value of which this suit is brought, was levied on as the property of Henry T. Ray, in the suit of Margeret Ray v. Henry T. Ray, and at the instance of the former to satisfy her costs in that suit. She treated it as his property, and under the decree of the court in that suit it was set apart to him as his share of the common property of himself and wife; but, as to the title to her share of the property, which she took by the decree of the court in the divorce suit, in addition to the bill of sale, the proof shows that her title under that decree was not valid, but that it was in Dangel, and so adjudged by this court in recovering the judgment of the district court, in the case of Ray v. Dangel and Ray, already referred to. That question was res judicata, and was no longer an open one for the consideration of the jury, and it was properly withheld from them.
The defendant’s seventh instruction, which was refused, is as follows: But if the jury believe from the evidence that the title to the property in such bill of sale described, was after the execution and delivery of such bill of sale, and the property therein set forth and described, to said plaintiff Dangel by said Ray, futher adjudicated and determined by the final judgment of the court in the divorce suit of Margaret Ray v. Henry T. Ray, and that such remains unrepealed and unrecovered, then the title by such judgment is superior to the title by such bill of sale, and must prevail, and in such case the j ury will find for the defendant. There was no error in refusing this instruction. In the first place it places the plaintiff’s right to recover entirely on the question of his ownership of the property in controversy, whereas he has a right of action for the recovery of the fees paid by him to his attorneys in the injunction suit, and that it is well brought for such purpose.
In the next place the instruction is based upon the legal conclusion that the judgment awarding Margaret Ray the
The defendant’s eighth instruction embraces the samé principle of law, and was properly refused.
The defendant’s ninth instruction, which was refused, is as follows: The order made by Judge Noggle, extending the time of the process issued in the divorce suit of Ray v. Ray, was void and without authority of law, and any damages caused thereafter, by reason of the said order, to Dangel, can not be recovered in this action. Without stopping to consider the question whether the judge had authority to extend the life of the process, it is a sufficient answer to this' objection to say that the order extending the time, by which the plaintiff sought to show his title to the property, and his damages in part, was admitted in evidence without objection from the defendant, and treated by him as legitimate evidence, and he could not thereafter be permitted to destroy its effect by the instruction asked for. Had he deemed it inadmissible, he should have objected to its introduction, or had it been inadvertently admitted, he should have moved to strike out, and if the rulings of the court had been against him, should have taken his exceptions in due form.
The tenth instruction covers substantially the same grounds, and for the same reasons was properly refused.
The eleventh instruction is as follows: If the jury believe from the evidence, that the cattle sold by Mrs. Eay were delivered to her by virtue of process issued i'n the divorce suit, and that they were the cattle decreed to her in that action, then the plaintiff can not recover therefor, nor the value thereof. It is unnecessary to repeat what has already been said, that Mrs. Eay took no title to the cattle mentioned by the decree of the court in the divorce suit as against Dangel.
Nos. 13, 14, 15, and 16 all go to one point, and may be considered together.
No. 13 is as follows: If tbe jury believe from the evidence that tbe defendant, Levy, was induced to sign tbe bond in suit with tbe express understanding that one other good and responsible surety ivas to sign with him as a co-surety, and that by a fraud upon him and by a deception tbe co-surety that appears upon said bond did not justify to tbe full amount of tbe said bond, but that through mistake of tbe justice of tbe peace, tbe bond shows that said J. C. Sims did regularly justify to said full amount of two thousand dollars, but that be did not do so, tbe plaintiff can not recover in this action. It is sufficient to say, in answer to this objection, that there was no evidence in tbe case, to support either of these instructions, and besides, tbe alteration claimed to have been made was not a material alteration, and did not effect tbe liability of tbe defendant.
Nos. 17 and 18 require tbe court to charge tbe jury that tbe plaintiff can not recover in this action for damages .caused by tbe act of tbe sheriff in obeying tbe final process of tbe court, issued in tbe case of Ray v. Ray, to carry out tbe decree of the court in said cause.
Tbe reasons for upholding tbe court in tbe refusal to so charge tbe jury, have been repeatedly given in tbe preced
The only errors assigned by the appellant not already considered, which are deemed important to notice, áre founded upon the refusal to admit the testimony of A. Martin, J. C. Sims, and A. Heed, offered by the defendant touching the alleged alteration of the bond, and to the conditions upon which, it was claimed, defendant Levy only agreed to execute it, and also to the decision of the court, permitting the bond to be inspected by the jury, and in giving it in evidence to the jury. The witness, Martin, testified that he recognized the instrument, and that he took the justification of Sims, whose signature appeared to it.
The plaintiff formally objected to any evidence of or concerning the signature of the said Sims, or of said erasure, or of any alteration of said bond. The counsel for the defendant admitted that no change or alteration had been made in the bond since it was signed by defendant Levy. "Whereupon the defendant’s counsel offered the following propositions:
1. We propose to show by this witness (Martin), th#t Mr. Sims, when he signed this bond and made his justification thereto, that he, Sims, expressly three times distinctly limited his liability to one thousand dollars, and stated at the time that he could not justify to more than one thousand dollars, that the one thousand dollars was placed on the bond at the time between the signature of the said Sims and the seal. This erasure was before the execution of the bond by the defendant Levy. 2. We propose to show further by this witness that the bond has been altered since said justification of Sims was made, and since said bond left the hands of said witness Martin.
The court overruled both propositions.
The following question was then propounded to this witness: Has this bond been altered since it left your hands when the justification of Sims was taken by you? This question was objected to and the objection sustained.
The defendant’s counsel then called J. C. Sims, to whom the following questions were put: To what amount did
A. Heed was then called as a witness for defendant, who was asked: Did you in the presence of Mrs. Bay have any conversation with defendant Levy before he signed the bond in suit, and did he not limit his liability upon said bond by the condition that another good and sufficient surety equal in amount and value to himself in the sum of two thousand dollars should be procured to go upon the bond with him ? This question was objected to by plaintiff, and the objection sustained. j
The plaintiff then offered the bond in suit in evidence, which was objected to by the defendant, and the objection overruled, and the bond was read to the jury.
It is not necessary to consider at length the questions raised upon these rulings of the court, for they have been pretty fully discussed already, but it may be well to say, that no presumption can be derived from the proposed testimony, that the plaintiff erased, or caused to be erased, the figures which it is claimed attached to Sims’ name, and for this reason, that if done at all, it was done before the execution of the bond by Levy, and of course before it came into the hands of the plaintiff, as is shown by the defendant’s own admission.
As the introduction of the bond in evidence was necessary to establish the plaintiff’s case, and as its execution was not denied in the answer, there was no error in letting it go to the jury. There have been many points raised in the case by the assignment of errors, which in their essential features are the same as have been already discussed. This has made the duty of examining them very laborious, and as it was unnecessary to the defendant’s case, we can not refrain from expressing our disapproval of the practice of incumbering a record with needless repetitions.
There have been many errors and defects in the pleadings and proceedings in the various stages of the case, but we can not say that they affect the substantial rights of the
After a patient and most thorough examination of the questions involved, we are constrained to hold that there was no error in the judgment of the court below, or in the order overruling the motion for a new trial, and that both must be affirmed at appellant’s cost.