Paul v. Arnold

12 Ind. 197 | Ind. | 1859

Davison, J.

The appellee, who was the plaintiff, sued John Paul and Erastus Floyd upon a delivery-bond. In the complaint it is alleged, that the plaintiff, at the July term, 1856, recovered a judgment in the Decatur Court of Common Pleas against Paul for 849 dollars, and costs,

.taxed at 9 dollars, upon which an execution was issued, and, by virtue of which, the sheriff levied on certain articles of personal property belonging to Paid, of the value of 1,082 dollars, and thereupon he, with Floyd as his surety, executed to the plaintiff the bond in suit, which is in the penalty of 1,800 dollars, and conditioned for the delivery of the property levied on to the sheriff, at the residence of Paul, on the 5th of June, 1857.

For breach, it is alleged that defendants, or either of them, did not deliver the property as stipulated in the condition of the bond. The complaint concludes thus: “In consideration of the premises, the plaintiff demands judgment for the amount of the debt, interest, and costs, as shown by the execution, together with ten per cent, damages ■ thereon, and accruing interest and costs, and other proper relief.”

Demurrer to the complaint overruled, and final judgment in favor of the plaintiff for 951 dollars.

There are two assignments of error—

1. That the complaint nowhere demands judgment for any stated sum of money; that the bond sued on is in a penalty of 1,800 dollars, and the amount claimed is not limited within the jurisdiction of the Common Pleas.

2. That the bond is void on its face, because the condition does not state that the execution-defendant might sell the goods levied on at private sale.

These assignments are not maintainable. The concluding branch of the complaint very distinctly refers to the debt, interest, and costs, shown by the execution, as the amount demanded in the suit; and by this reference it sufficiently appears that the aggregate amount demanded is within the jurisdiction of the Common Pleas. It is true, the mode in which the demand is stated is not in any approved form; but, in this instance, it seems to be substantially sufficient.

The second assignment of error remains to be considered. We have a statute which says:

“ Any personal property taken in execution, may be returned to the execution-defendant by the sheriff, upon the' delivery, by the defendant to him, of a written undertaking, payable to the execution-plaintiff, with sufficient surety, &c., to the efiect that the property shall be delivered to the sheriff at the time and place named in the undertaking, to be sold, &c., or for the payment to the sheriff of the appraised value thereof, or when the same is not appraised, then of the fair value of the same.” 2. R. S. p. 138, § 457.

Another section provides that the sheriff, before he delivers the property to the defendant, shall cause it to be appraised, &c.; and the defendant -may sell or dispose of it, paying the officer the full appraised value thereof. Id. p. 139, § 458.

These provisions evidently contemplate the insertion, in the written undertaking, of a stipulation to the effect that the execution-defendant may dispose of the property; but the stipulation is for his benefit, and having executed the instrument without its insertion, it must, in the absence of proof to the contrary, be presumed that he waived it. The omission to insert the stipulation does not, in our opinion, affect the validity of the instrument in suit. Patterson v. Brown, 1 Ind. R. 567.

M. M. Ray and T. A. McFarland, for the appellants. R. Robbins, J. S. Scobey, and W. Cumback, for the appellee. * Per Curiam.

The judgment is affirmed with 3 percent, damages and costs.