285 F. 557 | 9th Cir. | 1922
(after stating the facts as above). The question here presented is whether under the laws of Oregon, which provide that, in a case where attached property has been released by virtue of a forthcoming bond, the court, upon giving judgment against the defendant, “shall also give judgment in like manner and with like effect” against the sureties, the remedy so provided is exclusive, so that the failure thus to enter- judgment against the sureties discharges them from the obligation of their undertaking. In 6 C. J. p. 351, § 741, is expressed the rule to which we find no exception among reported cases:
“An action on a bond for the forthcoming of property or discharge of an attachment is not excluded by other and summary remedies provided for the enforcement of such liabilities.”
Among the cases supporting the text are Chapline v. Robertson, 44 Ark. 202; Lobdell v. Lake, 32 Conn. 16; State v. Boies, 41 Me. 344; State v. McGlothlin, 61 Iowa, 312, 16 N. W. 137; Troy v. Rogers, 116 Ala. 255, 22 South. 486, 67 Am. St. Rep. 110; McDowell v. Morgan, 33 Mo. 555; First National Bank of Elida v. George, 26 N. M. 176, 190 Pac. 1026. The cases so decided all affirm the general principle that the statutory remedies are not exclusive, but cumulative, and this, notwithstanding that the statute may provide that, if judgment goes against the defendant, the same “shall” be entered against him and his sureties (State v. McGlothlin, supra), or judgment “must” be rendered against the sureties as well as the principal (Jaffe v. Fidelity & Deposit Co., 7 Ala. App. 206, 60 South. 966).
The ground on which the court below held that the rule in Oregon differs from the rule elsewhere universally recognized is that in' Oregon a series of decisions of the Supreme Court has established the doctrine that in case there is no discharge bond, and the plaintiff obtains judgment against the defendant, he waives his attachment and loses the lien thereof, unless he obtains in his judgment an order subjecting the attached property to sale in satisfaction thereof. Bremer v. Fleckenstein, 9 Or. 266; Moore Mfg. Co. v. Billings, 46 Or. 403, 80 Pac. 422;
It is urged that the bond is a substitute for the attached property. To this we cannot assent. It may be true that, in a case where personal property has been released from attachment on a forthcoming bond, conditioned upon redelivery of.the property to satisfy execution. the bond is a substitute for the attached property. But that cannot be said in the same sense of a bond which is conditioned merely upon the payment of the judgment by the sureties. In such a case the bond does not take the place of the attached property. It expresses an original contract wherein the sureties, on the condition that the attachment be discharged, bind themselves to pay the judgment in default of payment by the defendant. From the moment when such a bond is given and the attachrnent is discharged, the attachment laws have no further application to the action or to the rights of the parties. Illustrative of this is the generally accepted rule that, where a defendant gives a discharge bond or a bond conditioned to pay the judgment, which operates to discharge the attachment, the sureties become unconditionally liable, so that it is immaterial whether the attachment was valid or whether ground existed therefor, and that the bond operates as a waiver of the right to move for the dissolution of the attachment. 6 C. J. 338. It is so held in Oregon. Bunnemann v. Wagner, 16 Or. 433, 18 Pac. 841, 8 Am. St. Rep. 306, Such a bond is an unconditional contract to pay whatever judgment shall be rendered against the defendant on the merits of the case. Brady v. Onffroy, 37 Wash. 482, 79 Pac. 1004. The sureties in the present case did not contract that the failure to enter judgment against them should be a waiver of recourse against them. It is not so nominated in the bond. They undertook that, in case the plaintiff recovered judgment, “the defendant will, or in default thereof we, his sureties, will on demand, pay to the plaintiff the amount of the judgment.”
The defendants in error advance as further reasons for the construction which they contend for, first, that a judgment against the sureties in the main action prevents circuity of actions and affords complete relief in one proceeding; second, such a judgment prevents the imposition of double costs on the sureties; and, third, it prevents postponement of subrogation or recourse by the sureties against their principal. The answer to all these suggestions is that the sureties may avoid all such difficulties by promptly paying the judgment which is rendered against their principal, as by their undertaking they promise to do. The contention ignores the fact, uniformly recognized, that summary proceedings against sureties are provisions for the benefit
“The object oí the law, as well as the ends oí Justice, is best accomplished by holding that these remedies are cumulative.”
The judgment is reversed, and the cause is remanded for further proceedings.
