Mishler v. Edmunson

180 P. 934 | Or. | 1919

JOHNS, J.

The bond is joint and several, follows the statute and expressly provides for the delivery of the hops to the plaintiff, “if such delivery thereof be adjudged, or for the payment to said plaintiff of any such sum as may for any cause be recovered against said defendant.” Judgment was recovered against J. M. Edmunson, the defendant in the original action, for the sum of $1,346.69, the value of the property, and $74.60 costs in the trial court. From this judgment the defendant J. M. Edmunson appealed to this court, where it was affirmed with costs in this court, $39.

1. We are of the opinion that all of the costs in both courts come within the terms and provisions of the redelivery bond. It was through the force and effect of that counter-bond that the property was taken from the sheriff and delivered to the defendant J. M. Ed-' munson in an action then pending. At the time of its execution his sureties knew that the case could and might be appealed to the Supreme Court. And regardless of the supersedeas bond they also knew that as long as the redelivery bond was in force and effect the defendant J. M. Edmunson was entitled to obtain and hold possession of the hops.

The law is well stated in 34 Cyc. 1582, where it is said:

“One who becomes surety on a replevin bond thereby becomes a joint debtor with the principal obligor, and ordinarily his undertaking extends to all proceedings and adjudications in the same action, through every court to which it may be carried by appeal, in case the party giving the undertaking is finally defeated.”

We find in 23 R. C. L., page 919:

“So also the costs in the replevin suit are recoverable by the successful defendant suing on the replevin bond, when the condition is that the obligors will pay to the obligee any judgment he might recover in the replevin action.”

Coonradt v. Campbell, 29 Kan. 391, is a similar case and it was there held:

“The appeal bond continued in force from the time it was given until the property was restored under the final judgment. The supersedeas bond was only additional security, having in no manner set aside the obligations of the appeal bond. It was entirely optional with Coonradt whether he took the judgment against him in the District Court up to_ this for review, and entirely optional whether if he did take it up he should stay the enforcement of that judgment by a supersedeas. His election to continue the litigation further and to stay proceedings in no manner released him from the liabilities assumed by this appeal bond. ’ ’

The same principle is sustained in State v. McGlothlin, 61 Iowa, 312 (16 N. W. 137); Campbell v. Laue, 2 Neb. (Unof.) 63 (95 N. W. 1043); Shannon v. Dodge, 18 Colo. 164 (32 Pac. 61); Jordan v. Agawam Woolen Co., 106 Mass. 571.

The only authority cited by defendant’s counsel is Winston & Fenwick v. Rives, 4 Stew. & P. (Ala.) 269. That case was first tried in the County Court and an appeal was taken to the Circuit Court. A supersedeas bond was executed on that appeal and the judgment of the County Court was affirmed. An appeal was then taken to the Supreme Court and another supersedeas bond was executed on that appeal. Judgment was rendered against the sureties on the final appeal and it was there held that the judgment against the sureties on the supersedeas bond on the appeal from the Circuit to the Supreme, Court operated as a release or discharge of the sureties on the supersedeas bond on the appeal from the Comity Court to the Circuit Court. That case is not in point here.

2. We hold that the supersedeas bond is cumulative; that the terms and provisions of the redelivery bond, “for the payment to said plaintiff of any such sum as may, for any cause, be recovered against said defendant,” are broad enough to cover and include costs in the trial court and the costs on appeal to this court, and that the execution of the supersedeas bond did not operate to release the defendant M. S. Wallis from liability upon the redelivery bond. The judgment of the Circuit Court is affirmed. Affirmed.

McBride, C. J., and Bean and Bennett, JJ., concur.