66 Mo. App. 238 | Mo. Ct. App. | 1896
There is no controversy as to the facts in this-case. On the twenty-fourth day of November, 1890, the defendants Einke andNasse began an attachment suit in the circuit court of Audrain county against one W. J. Pike. They executed an attachment bond in the penal sum of $1,265.56 with their codefendants herein as sureties. The conditions of the bond were that, if Einke and Nasse should ‘ ‘prosecute the action without delay and with effect, refund all sums of money that may be adjudged to be refunded to the defendant, or found to have been received by the plaintiffs and not justly due to them, and pay all damages and costs that may accrue to any defendant or interpleader or garnishee by reason of this attachment, or any process or proceeding in this suit, or by reason or any judgment or process thereon, then this obligation is to be void, otherwise to remain in force.”
The foregoing are the facts out of which this litigation has arisen. The petition alleges that a failure to refund the money amounted to a breach of both of the attachment bonds. There are two counts in the petition, the first is based on the original bond, and the second on the last bond. The cause was submitted to
The objections to the judgment are that' the second bond was not approved by the clerk of the circuit court, and that the failure of Einke and Nasse to refund the money received by them from the relator was not a breach of the bond.
If the second bond were otherwise a good statutory bond, the objection that the clerk failed to indorse his approval thereon could not be raised by the defendants under many decisions in this state, which need not be gone into here. The statute provides (B. S., secs. 527 and 528) that, before the attachment issues, a bond must be filed and the sureties approved by the clerk and his approval indorsed on the bond, but no authority is conferred on the clerk to receive or approve a second bond after the attachment writ has been served. If the bond taken , by the clerk in the first instance is insufficient, it is for the court and not for the clerk to order and approve another bond (B. S., sec. 529). Hence, it is clear that the second bond is not a statutory bond. But as the giving of a bond contravened no rule of public policy and is not in violation of any statute of this state, it is a good common law bond; hence the objection urged against it is immaterial, as it was not necessary that anyone should approve it. It was intended by the makers to remedy the defect in the original bond, and doubtless, by reason of it, the defendant .in the attachment was induced not to move for a new statutory bond, as he
It was decided by the supreme court in the case of Barnes v. Webster, supra, that an action on such a bond as we have here might be maintained in the name of the obligee to the use of anyone who was damaged, and came within the terms of the bond. Therefore, the only remaining question to be determined in the present case is whether or not the conditions of the bond here are broad enough to protect the relator against loss on account of the refusal of Finke and Nasse to return to him the money which he paid to them, and to which they were not entitled.
One of the conditions of the bond is that the obligors “shall pay all damages and costs that may accrue to any sheriff or other officer by reason of acting under the writ of attachment following the instructions of the plaintiff.” It is insisted by defendants that this condition in the bond has reference only to the acts of the sheriff in seizing property under the writ. We think that the bond will admit of a broader and more liberal construction. It may fairly be said that the relator, in paying the money fco Finke and Nasse, ‘ ‘acted under the writ of attachment.” The relator held the proceeds under the writ; Finke and Nasse claimed the money by virtue of their levy; and he paid it to them upon the assurance of their attorney, that, if it should turn out that they were not entitled to it, they would have to refund it or answer on the attachment bond for their failure. He also testified that he consulted with the judge of the circuit court as
The bond also provides that Finke and Nasse should refund all sums of money found to have been received by them, and not justly due. We think that the judgment may also be sustained under that condition. It is not disputed that Finke and Nasse received the money and that they were not entitled to it, and that, under the orders of the circuit court, the relator was compelled to pay the amount to Jamison who had been ascertained to be the rightful owner.
Our conclusion is that the judgment is right, and that it ought to be affirmed.