39 Ark. 460 | Ark. | 1882
Cassa Creamer sued Mayfield as surety on a bond, which had been given by Peter Creamer and W. D. McMasters, defendants in a former suit against them by Cassa Creamer to recover the price of -personal property sold to them, and in their possession. The suit was under the act of the ninth of March, 1877. The bond executed by the defendants and Mayfield was to the effect that the said defendants would perform the judgment of the court in that action. These matters are set forth in the present complaint, with the further allegations that complainant recovered the sum of $344.50 on the sixth of June, 1879, and that it remained unpaid.
Defendant, in his answer, not paragraphed, set up two grounds of defense: First, that the bond was given as provided by law in replevin (section 501$ Gantt’s Digest), was the same in form, and should have the same effect— that is, to secure the forthcoming of the property; second, that the original vendor of the property, for the price of which the former action was brought, was not in fact the owner of a great part of it, specifically described, and that,, after, the execution of the bond, that portion had been recovered from the vendees in an action of replevin by a. third party. He offers to return the remaining portion.
A demurrer to this answer was sustained, and defendant-appealed.
The statute of March 9,1877, was construed by this court in the case of Creamer v. Creamer et al., 36 Ark., 91, in which it was held that the bond contemplated therein was not in the nature of the retaining bond in replevin, but rather like that provided for in section lf.16 of the Digest, in case .of attachment, in order to have it discharged.
Such a bond, in effect, as well as in terms, is absolute, to perform the judgment of the court. It is, then, matter of indifference to the plaintiff what becomes of the property. He relies upon the bond. It is no defense to the bond to say that the vendor had not title. That might be pleaded in the original suit, and if' the defendant should set it up, he ought not to wish to retain the -property, or call in sureties to enable him to do so. If he does the latter, he and his sureties must be held tó their undertaking, and must abide the judgment of the court.
The first part of the answer set up was matter of law. The second part showed ho facts constituting a defense. The demurrer was properly sustained.
Affirm the judgment.