127 Iowa 226 | Iowa | 1905
All the property was taken under the writ of replevin except one bull, “ Master of the Ring,” of the estimated value of.$1,705, for which a delivery bond was executed, with L. F. Potter and Bradley McCord as sureties. Judgment was entered by consent against defendants, confirming the title in plaintiff to all the cattle described in the petition, and, by his election, for the value of the animal mentioned. Thereupon he moved for judgment on the delivery bond, and this was resisted by the sureties on the .grounds (1) that by electing to take a personal judgment against defendants for value plaintiff had waived compliance with the conditions of the bond, and (2) that both before and since the entry of judgment the sureties had tendered the bull in as good condition as when the action was com
Appellant argues that the rule should be tbe same as that wbicb obtains in entering judgment against tbe sureties on tbe replevin bond. But tbe statute in relation to that expressly directs that, “ if tbe judgment be against plaintiff for tbe money value of tbe property, it shall also be against tbe sureties on bis bond.” Section 4176, Code. And the obligation of tbe sureties of such bond is that be shall “ prosecute tbe action to judgment and return tbe property if awarded, and pay all costs and damages that may be adjudged against him.” Section 4167. Tbe word “ damages ” is not limited to “ taking or detention,” as in tbe delivery bond, but includes any that may be adjudgfed against the plaintiff. Tbe liability of tbe sureties is fixed by their obligation, and cannot be changed or enlarged by tbe conduct of plaintiff alone. See Larabee v. Cook, 8 Kan. App. 776 (61 Pac. Rep. 815); New England Furniture Co. v. Bryant, 64 Minn, 256 (66 N. W. Rep. 974); Hall v. Tillman, 103 N. C. 276 (9 S. E. Rep. 194); Lewis v. McNary, 38 Or. 116 (62 Pac. Rep. 897).