86 Iowa 136 | Iowa | 1892
I. This case is submitted upon the appellant’s abstract and argument.' In view of the importance of the principal question presented, we regret to be compelled to determine it without a full argument.
The appellant relies upon the general doctrine that none but parties to an action and their privies are bound by the adjudication. "While such is the general rule, the books and daily practice afford many instances where sureties are concluded, by judgments against their principals, though not parties to the action; as, for instance, in the case of replevin and supersedeas bonds. Whether, in the absence of some provision by
By the bond in suit, the appellant obligated himself that Elizabeth Babcock would “pay all damages which may be adjudged against her by reason of such injunction.” By executing this bond he caused the injunction to issue, knowing that the right of Elizabeth Babcock thereto would be determined in that action. We are of the opinion that by the bond he agreed to be bound by the adjudication of that issue. As, under our practice the question of damage was not adjudicated in that action, the appellant is entitled to defend upon that issue; but if, as in the states referred to, damages had been assessed in the former action, he would be concluded by that adjudication also. We find no case upon a bond conditioned as this, where, in an action on the bond, the surety has not been held to be concluded by the decree dissolving the- injunction.
It may be suggested that, asno damages have been adjudged against Elizabeth Babcock, the appellee was not entitled to recover against the appellant. No such question is made in the record, for the reason, we assume, that under the law “a suit against the principal is not necessary to determine the liability of the sureties upon an injunction bond.” Dangel v. Levy, 1 Idaho, 722. Bunt v. Rheum, 52 Iowa, 619, is cited and relied upon by the appellant. Expressions are found in that opinion that seem to support his contention, but when the question before the court in that case is kept in mind it will be seen that the conclusion is not in conflict with the views we have expressed. Bunt filed his petitions showing that one McCraney had sued out an attachment against him, the defendant Rheum being surety on the bond; that he (Bunt) set up a counterclaim for damages for wrongfully suing out the attachment thereon, as authorized by statute, and recovered thirty dollars and twenty-five cents on default against
III. The appellant complains of certain rulings of the court in taking the testimony.- We fail to discover any prejudicial error in the rulings complained of. It appears that the mare in question was one of a lot of
The appellant complains of the conduct of counsel for the appellee in his" address to the jury. An examination of 'the address as shown in the abstract fails to disclose any misconduct prejudicial to the appellant. Aside from some rather remote illustrations and embellishments, .the argument was within the issues, and applicable to the case.
Our conclusion is that the judgment of the district court should be aeeirmed.