38 Ind. App. 156 | Ind. Ct. App. | 1906
Tbe question for decision grows out of tbe following facts: Tbe Varney Electric Company in 1904 obtained a judgment in a justice of tbe peace court of Marion county against tbe Topp Hygienic Milk Company for $117.29. An execution was issued tbereon in due form, and placed in tbe bands of a constable, wbo levied upon a team of borses, harness and wagon belonging to said milk company, wbicb thereupon gave a delivery bond therefor, tbe same being executed by appellant as its surety, and by virtue of wbicb said company retained possession of said property. It failed to pay tbe value of or deliver said property as required by tbe terms of said bond, and tbe electric company, by reason of said default, recovered judgment upon said bond against appellant for tbe sum of $144.37, and caused an execution against him to issue tbereon, by reason of wbicb be was compelled to and did pay tbe amount of said judgment and costs. In tbe meantime, a receiver for tbe milk company bad been appointed, wbo took possession of tbe borses, harness and wagon above specified and sold tbe same for $180. Nothing has been paid by tbe milk company or receiver upon said judgment, nor to appellant, wbo intervened in the matter
Judgment reversed, and cause remanded, with instructions to sustain motion for a new trial and further proceedings.