81 Kan. 794 | Kan. | 1910
The opinion of the court was delivered by
The appellants were sureties on a redelivery bond given in an action of replevin. Suit on the bond resulted in a judgment against them, from which they appeal.
The facts are that the .First State Bank owned a note secured by a chattel mortgage on 249 head of cattle, and brought replevin to recover possession. The sheriff found and took all the cattle described in the mortgage except 79 cows and 32 calves, when the defendants executed and delivered to him a redelivery bond for all the cattle. The sheriff approved the bond, but the plaintiff in the action excepted to the sufficiency of the sureties and the sheriff required them to justify before the clerk of the district court. Two of the sureties appeared before the clerk and justified
The answer admitted the execution and delivery of the bond, but set up as a defense that the cattle had never been delivered to the defendants in the replevin action and that they had demanded the return of the bond while the cattle which the sheriff had taken were still in his possession. The answer further alleged that the clerk of the district court refused to approve and accept the bond, on account of the failure of one of the sureties to appear and justify. The bond contained an indorsement of the clerk stating that it had been allowed and approved, after justification. It also contained the following indorsement:
“At two o’clock p. m., July 19, 1900, the sureties not having all appeared for justification before me, I hereby set aside my approval and finding of this bond.
A. G. Morris, Clerk District Court.”
The doctrine is settled in this state that the sureties on a redelivery bond in replevin are estopped to claim that the defendant did not have the property in his possession, and are bound by the judgment in the replevin action. (Kennedy v. Brown, 21 Kan. 171; Benesch v. Waggner, 12 Colo. 534; Diossy v. Morgan et al., 74 N. Y. 11; Griffith v. Richmond, 126 N. C. 377; Schnaider Brewing Co. v. Niederweiser, 28 Mo. App. 233; Cobbey, Replevin, 2d ed., § 1314; 24 A. & E. Encycl. of L. 544.)
That the defendants never received possession of the cattle which the sheriff had taken is a matter of no consequence for another reason. This action was not brought to recover the value of the cattle taken; those were all accounted for; they were sold and the proceeds credited on the judgment in the replevin action. The basis of the liability of the sureties is the value of the cattle which the sheriff refrained from taking and which it is presumed he would have taken from the defendants except for the giving of the bond. (Kennedy v. Brown, supra.) In the opinion in that case, referring to the sureties, the court said:
“They could no more prove in their defense that the cattle had never been in the possession of Kennedy than they could have introduced evidence showing Kennedy was the owner thereof and that the judgment in the replevin action ought to have been for him instead of Brown. In other words, they had no right to retry the issues settled in the former suit.” (Page 176.)
The liability of the sureties became fixed when the •sheriff accepted and approved the bond. Nothing that occurred thereafter relieved them from liability. The plaintiff had twenty-four hours in which to except to
There remains only the claim that the petition failed to state a cause of action because it failed to allege that an execution had issued on the judgment in replevin. The obligation of the sureties was not that they would pay the value of the cattle provided an execution was issued and found to be fruitless, but that the defendants would deliver the property to the plaintiff if delivery be adjudged. A question very similar was. raised in MacRae v. Piano Co., 69 Kan. 457. In that case it was held that the duty was upon the defendant to tender back the replevined article, and not upon the-plaintiff to demand or enforce possession. In Sweeney v. Lomme, 89 U. S. 208, the condition of the bond was
The judgment is affirmed.