151 Ky. 632 | Ky. Ct. App. | 1913
Opinion of the Court by
Reversing.
“Rowan Circuit Court. February 23,1904.
“H. Leet & Co.
v. Claimants Bond.
“Jesse White.
“The undersigned, S. L. Green, principal, and Geo. W. .Stone, R. K. Green and M. M. Redwine, his sureties, undertake that S. L. Green will perform the judgment of the court herein stated.
“S. L. Green,
“Geo. W. Stone,
“R. K. Green,
“M. M. Redwine.”
The bond was accepted by the sheriff and returned with the attachment to the court. White was a nonresident of the State and was proceeded against as such. The case proceeded to trial and on the final hearing, judgment was entered in favor of the plaintiff, and the attachment was sustained. Green appealed to this court and on the appeal the judgment was- affirmed. (Green v. Leet, 128 S. W. 78.) Leet then brought this suit against Green and his sureties on the bond. They answered, alleging in substance that Green when the sheriff had attached the mill was willing to execute a forthcoming bond under section 214 of the Code of Practice, and was unwilling to give any other bond, that he and ;his sureties signed the bond in question, supposing that it was -simply a forthcoming bond as provided for in that .section, and being so assured by the sheriff; that the bond to- perform the judgment of the court was given by mistake both on the part of the signers to the bond and' of the sheriff who took it. The plaintiffs- filed a demurrer to the answer; the circuit court overruled the demurrer. They then filed a reply denying its allegations and upon a hearing of the ease before a jury, there was a judgment in favor of the defendants. The plaintiffs appeal.
It will be observed that the bond executed here is simply a bond for the performance of the judgment of the eourt. No' reference is made in it to the value of the-property, and there is no provision in it for the forthcoming of the property. But it is insisted that the sheriff and the signers of the bond made a mistake and that this mutual mistake should be corrected. But it will be observed that Leet & Company were in nowise parties to the mistake. The sheriff had1 the attachment; he took and returned the bond. He was not the agent of Leet & Company in taking it. Green .was party to the action and had a right to give the bond just as it was returned by the sheriff. Leet & Company proceeded with their action without any notice to them that a mistake had been made by the^ signers of the bond, or that the sheriff had misled them in any way. Under such circumstances Leet & Company are not to suffer for the mistake of the sheriff and the signers of the bond, if the sheriff did make a mistake. He is dead and his version of the transaction cannot be told. As a matter of fact, one of the signers of the bond is a distinguished lawyer, and aside from this, Green was represented by counsel in the equity case. If the sheriff had made a mistake, .and the bond
The circuit court should have sustained the demurrer to* the answer and amended answer, and under the evidence should have instructed the jury peremptorily to find for the plaintiffs.
Judgment reversed and cause remanded for further proceedings consistent herewith.