18 Kan. 236 | Kan. | 1877
The opinion of the court was delivered by
Endress sued Ent before a justice of the peace on an account for goods sold, payment to be made on delivery. Ent failing to pay, the identical property sold was seized on attachment. To release the property from attachment, Ent as principal, with John C. Douglass as surety, executed the following undertaking:
{Court, and Title.) “We bind ourselves to the plaintiff, William Endress, in the sum of eighty-five dollars, that the defendant, M. L. Ent, shall perform the judgment of the said magistrate in this action touching the attachment herein.”
This undertaking, and the security therein, were approved and accepted by the justice of the peace. Endress recovered judgment against Ent, and the judgment remaining unsatisfied, suit was brought against Ent and Douglass on said undertaking, and judgment rendered by the justice of the peace against them. From this judgment an appeal
“If the defendant, or other person in his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff, by one or more sureties, resident in the county, to be approved by the justice, in double the amount of the plaintiff’s claim, to be stated in his affidavit, to the effect that the defendant shall perform the judgment of the justice, the attachment in such action shall be discharged, and restitution made of any property taken under it, or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee, in such action, for any property of the defendant in his hands.”
The judgment of the court below will be reversed, and a new trial ordered.