12 Iowa 73 | Iowa | 1861
There are several errors assigned, but they all resolve themselves in this one, whether Richards the surety is liable on the bond, there being no order for the return of the property in the replevin suit.
The bond is in the usual form, and conditioned, as required by the statute, that Mobley will appear at the néxt term of the court and prosecute his suit to judgment, and return the property, if a return be awarded, and also pay all costs and damages that may be awarded against him.
That the proper judgment in an action of replevin, as a general rule, when the plaintiff fails to maintain his action, is for a return of the property to the defendant, both at common law and under the statute, is settled by the cases of Chadwick v. Miller, 6 Iowa 38 ; Jansen et al. v. Effey, 10 Ib. 227. Suppose, however, no such order is made, but the court finds the value of the property and renders judgment therefor against the plaintiff, does such judgment, though irregular, have the effect of changing the liability of the surety in an action on the bond? Or in other words, is it necessary in order to make him liable upon his bond, for the breach now under consideration, that a judgment de retorno habendo should first be entered? We think not.
The District Court could enter no judgment against the surety in the original suit, (Jansen v. Effey, supra,) for he was not in court. The plaintiff, and principal in the bond, was in court, however, and over, him the court had jurisdiction. Eor whatever judgment the court had the power to render against him, though ever so erroneous, until reversed
Judgment Affirmed.