131 N.W. 229 | N.D. | 1911
Action to recover on a redelivery undertaking executed by defendants as sureties, in an action to recover the possession of specific personal property, in which the provisional remedy of claim and delivery was invoked. Such action was instituted and prosecuted by respondents herein against William and W. L. Cavern. Judgment was rendered in such action against William Cavern alone, and is for the recovery of money only, to wit, the sum of $1,562.45, and in no manner providing for nor adjudging the delivery to plaintiffs of the property thus rebonded. Failing to realize the amount of such money judgment upon execution, this action was instituted to recover from these defendants the amount thereof, with accrued costs. Plaintiffs had judgment in the court below for the sum prayed for. A motion for a new-trial was made, and an order entered denying the same, from which order this appeal is prosecuted.
Most of appellants’ brief consists of assignments of error, there being fifty-three in number, none of which are assigned in accordance with rule 14 of this court (10 N. D. XLVI, 91 N. W. VIII.). They are a mere duplication of the specifications of error, and no reference is made to the page of the abstract wherein the particular specifications-may be found, nor to the page or pages of the abstract in which the matter upon which the error is assigned may be found. Nor has counsel attempted in his brief to treat each assignment or group of assignments separately.
Owing to the manner in which appellants’ brief is prepared, we might-decline to notice any of the assignments of error; but we have concluded to dispose of appellants’ main, contention, which we understand' is that the judgment entered in the claim and delivery action is not
The judgment in the claim and delivery action being one for money only, appellants contend that by the terms of the redelivery undertaking there is no liability. In other words, it is urged, as above stated, that the only judgment contemplated, whereby these sureties might become liable on the bond, was a judgment in plaintiffs’ favor for the return of the property mentioned in such undertaking, or its value, in case a delivery cannot be had, and they cite several authorities in support of their contention; but respondent contends that they are all cases under statutes and undertakings differing from the statute in this state, .and the undertaking in the case at bar. Section 6922, Rev. Codes 1905, prescribing the undertaking required in order to obtain a redelivery of the property to defendant, reads: “The defendant may . . . require the return thereof-upon giving to the sheriff a written undertaking executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property as stated in the affidavit -of the plaintiff for the delivery thereof to the plaintiff, if such delivery is adjudged, and for the payment to him of such sum as may for any •cause be recovered against the defendant.” The conditions of the un•dertaking signed by defendants are in strict conformity to the above .statute, the obligation of the undertaking being as follows: “Now, therefore, we, the subscribers hereto, do hereby undertake and become bound to the plaintiffs in the sum of $2,000 for the delivery of the said property to the plaintiffs, if such delivery shall be adjudged, and for the payment to them of such sum as may, for any cause, be recovered ngainst the defendants in this action.”
The learned counsel for respondents concede that there would be no liability on the part of these sureties, if the undertaking which they had signed was merely conditioned for the delivery of the property, in case a delivery should be adjudged. They say: “Where the sureties •obligate themselves only for the return of the property, it is apparent that, if the return was waived and a money judgment entered in lieu "thereof, the sureties would not be liable.” The recent case of Gerlaugh v. Ryan, 121 Iowa, 226, 103 N. W. 128, cited and relied upon by ap
Our statute (§ 7075, Rev. Codes 1905,) prescribes the judgment that, may be entered as follows: “In an action to recover the possession, of personal property the judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof in case a delivery cannot be had, and for damages for the taking and detention thereof.” The judgment in respondents’ favor in the claim and delivery action not being for the possession or for the recovery of the possession of the property, but merely a money judgment, and the testimony in that action not being before us, the question arises whether, as against these sureties, it will be presumed in support of the judgment that the proof at the trial disclosed that a delivery of such property could not be had. The rule that such presumption may be indulged as against the defendant in the claim and delivery action appears to be well settled. Brown v. Johnson, 45 Cal. 76; Claudius v. Aguirre, 89 Cal. 501, 26 Pac. 1077; Faulkner v. First Nat. Bank, 130 Cal. 258, 62 Pac. 463; Erreca v. Meyer, 142 Cal. 308, 75 Pac. 826; and cases cited; Park v. Robinson, 15 S. D. 551, 91 N. W. 344. But no authority has been called to our attention wherein such a presumption has been indulged as against the sureties. On the contrary, the supreme court of Minnesota, in a well-reasoned opinion, has expressly held that no such presumption will be indulged in an action against the sureties. New England Furniture & Carpet Co. v. Bryant, 64 Minn. 256, 66 N. W. 974. We most cordially and fully indorse the-views expressed by that eminent jurist, Judge Mitchell, in the above case. The weight of authority under similar statutes is in accord therewith. Ashley v. Peterson, 25 Wis. 621; Gallarati v. Orser, 27 N. Y. 324; Cook v. Freudenthal, 80 N. Y. 202; Hall v. Law Guarantee & Trust Soc. 22 Wash. 305, 79 Am. St. Rep. 935, 60 Pac. 643. Respondents’- contention that the Minnesota decision is based on a statute
The conclusion at which we have arrived necessitates a reversal of' the order appealed from. Plaintiffs have neither alleged nor proved a. cause of action against appellants, and it was reversible error to overrule their objection to the introduction of any evidence under the complaint, and to instruct the jury, in effect, that they should find for the-plaintiffs, unless they found that the redelivery undertaking had been materially altered since its execution. The judgment in the claim and delivery action not being in the alternative form as provided by the Code, the plaintiffs, in order to recover against these sureties, must, allege and prove facts showing that they were entitled to judgment in the form in which it was entered. In other words, to allege and prove-that, in the claim and delivery action, it was made to appear that a return of the property could not be had.