13 Mont. 363 | Mont. | 1893
Lead Opinion
The foregoing statement of the case by Mr. Justice DeWitt, is sufficient for the purposes of this decision. The judgment of the trial court, in our opinion, should be affirmed.
Beaton, the principal, who procured the undertaking to be executed by the sureties on his behalf, and received the attached money from the officer (which money was not subject to the attachment), was liable therefor, without signing the undertaking, in an action by the officer, as well as to reimburse his sureties for whatever they were compelled to pay by reason of their engagement in said undertaking, on behalf of the principal. Both the principal and sureties could have been sued in the same action, or if the principal was not joined in the action brought by the officer against the sureties, they could have required the principal to be brought in and made party defendant in the action against the sureties, and have execution levied against the principal first. (Hoskins v. White, ante, page 70; Wibeaux v. Grinnell Livestock Co., 9 Mont. 154.)
The argument, that under all circumstances or in all engagements on obligations, it cannot be affirmed as a legal propo
An order will be entered affirming the judgment of the trial court.
Concurrence Opinion
([concurring). — I am not wholly satisfied that it is of absolutely no advantage to the sureties to have the principal’s signature on the undertaking; nor am I satisfied that, under all circumstances, sufficient evidence of the liability of the signing sureties would also be alone proof of the liability of the nonsigning principal. I think cases might arise where the proof would have to go a pace further. But the suggested advantage to the sureties is probably not sufficiently substantial in this case to be noticed. I therefore concur in the affirmance.