148 N.W. 1049 | N.D. | 1914
Lead Opinion
This is an action on a redelivery bond executed and delivered by the defendants in claim and delivery proceedings. The answering defendants, Austin, Dunton, and Crabtree, are sureties merely on such undertaking.
The facts, briefly stated, are as follows: In November, 1910, plaintiff commenced an action against the defendants George and William Ferguson for the recovery of the possession of certain personal property. In such action the provisional remedy of claim and delivery was invoked by plaintiff, and the property in controversy taken from defendants’ possession. Thereafter the redelivery undertaking upon which this action is based, was executed and delivered by the defendants George and William Ferguson, as principals, and these defendants, Austin, Dunton, and Crabtree, as sureties, for the purpose of regaining possession of such property pursuant to § 6922, Bev. Codes 1905. The undertaking is conditioned as provided by the statute, “for the delivery of the said property to the plaintiff, if such delivery shall be adjudged, and if return be not made for the payment to plaintiff of such sum as may, for any cause, be recovered against the defendants in this action.”
The complaint, in the case at bar, is in the usual form, except in ¶ 5 the following allegation appears: “That such proceedings were afterwards had that on the 1st day of September, 1911, judgment was rendered against the defendants George Ferguson and William Ferguson, that the plaintiff recover from and of said defendants, and each of them, the sum. of $859.14, it being shown to the satisfaction of the
We deem the decision in Larson v. Hanson, 21 N. D. 411, 131 N. W. 229, controlling in the case at bar. The two cases differ only in the fact that in the former there was no attempt whatever to allege or prove the exceptional facts authorizing the rendition of a judgment for money only in the claim and delivery action, while in the case at bar appellant contends that such exceptional facts were both alleged and proved. Is such contention correct ? We think not, and we will briefly state our reasons for this conclusion. The only allegation in the complaint is that contained in the last clause of ¶ 5 above quoted. Manifestly, this is not the equivalent of an allegation of the fact that the property, for some reason, could not be restored to the plaintiff. These sureties did not obligate themselves to pay plaintiff the value of the property absolutely, but they merely bound themselves conditionally for such payment if a delivery thereof “be adjudged and if return be not made.” A delivery of the property to plaintiff was not adjudged. Hence, they cannot be held liable on their undertaking in the absence of strict allegation and proof of facts showing that it would have been impossible to have returned the property to plaintiff if its return had been adjudged. In other words, it must, we think, as against these sureties, be clearly established that the exceptional form of judgment entered in the claim and delivery action in fact does not deprive them of any legal rights; or affect, in the least, their actual liability under the bond because of an utter inability, in any event, to restore possession to plaintiff of the property, and consequently they are in no way injured because of the judgment not being in the alternative form. Without such showing, we fail to see how the sureties’ liability for money only
The only safe and proper practice to pursue in entering a judgment in actions for the recovery of the possession of personal property, is that prescribed in the Code. ' If litigants would follow the plain provisions of § 7075, Rev. Codes, in causing judgments to be entered, much difficulty would be thereby obviated.
We have examined all of the authorities cited by appellant from other courts, and find that nearly all of them deal merely with the question in so far as it pertains to the parties to the replevin action, and for this reason we do not deem them in point here. There are, it is true, a few cases cited which seem to hold contrary to our decision in Larson v. Hanson, but we decline to follow them, as we deem the rule established in the Larson Case the better and sounder rule, and it has the support of numerous well-considered authorities in New York and elsewhere.
We decide this case on the assumption that as to the defendants in the claim and delivery action, the judgment therein rendered as for default was in all respects regularly given and entered. Such, however, does not appear to be the fact. There was no default. The defendants bad appeared and answered the original complaint, and when plaintiff was granted leave to amend its complaint, defendants were not obliged to serve another answer. The answer already served should have been treated as an answer to the amended pleading. In any event, defendants, having appeared generally, were entitled to notice of the application for judgment, which was apparently not given. These were, how
While our conclusion results in an affirmance of the judgment, we think the dismissal should be without prejudice to the bringing of another action. The judgment of dismissal amounts merely to a nonsuit for a failure of necessary allegation and proof. It may be that these defects can be cured by plaintiff in another action.
As thus modified, the judgment is affirmed.
Rehearing
On Kehearing.
A rehearing was asked for and granted upon the point covered in the last paragraph of the syllabus and of the opinion, wherein we modified the judgment of dismissal so as to make it read, “without prejudice,” instead of, “with prejudice,” to the bringing of another action.
After duly considering the written arguments submitted on such rehearing by the respective counsel, we have concluded to recede from our former views, and to eliminate from the syllabus and from the opinion what is therein said upon such point. The question was not raised by appellant’s counsel; and while this fact is not necessarily controlling, as we undoubtedly have the power, at our option, to notice errors appearing on the face of the judgment roll although not assigned (2 Enc. Pl. & Pr. 928; 2 Cyc. 984; Dufour v. Lang, 4 C. C. A. 663, 2 U. S. App. 477, 54 Fed. 913; Farrar v. Churchill, 135 U. S. 614, 34 L. ed. 249, 10 Sup. Ct. Rep. 771), still we have concluded, after a more careful examination of the record, that it is not so clear that error was committed as to warrant us in deciding the question at this time. We are not now prepared to say that in the former opinion we may not have mistakingly assumed that the dismissal amounted merely to a nonsuit at common law. In fact, while not so deciding at this time, we are inclined to the belief that the cause was fully submitted to the court for a decision on the merits within the meaning of § 6998, Eev. Codes 1905. However, we deem it advisable to reserve final decision of the point until it is properly raised.