106 P. 843 | Okla. | 1910
This was an action on a bond, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, for the recovery of the sum of $1,000. The case was tried to a jury, which returned a verdict in favor of the plaintiff, upon which verdict judgment was duly rendered. To reverse this judgment this proceeding in error was commenced in this court.
The bond sued upon is in words and figures as follows:
"Territory of Oklahoma, County of Caddo — ss.: L. K. Bingham, Pltf., vs. F. Weatherspoon, Defndt. J. H. Tuttle and P. S. Weatherspoon, Interpleaders. In the Probate Court within and for the County of Caddo in the Territory of Oklahoma. The following described property, to wit: __________, having been attached in said action in the hands of F. Weatherspoon J. H. Tuttle P. S. Weatherspoon, defendant, by L. K. Bingham, said plaintiff, on an order of said court dated November 4, 1901, and now delivered to said J. H. Tuttle and P. S. Weatherspoon, defendant, we bind ourselves to said plaintiff in the sum of two thousand dollars that such property shall be properly kept and taken care of and shall be delivered to the sheriff or constable on demand, or so much thereof as shall be required to be sold on execution to satisfy any judgment which may be recovered against him in said action, or that he will pay the appraised value of the property, not exceeding the amount of the judgment and costs. Tuttle Weatherspoon, by J. H. Tuttle. [Seal.] Frank Weatherspoon. [Seal.] T. F. Woodward. [Seal.] J. A. McCampbell. [Seal.] Executed in my presence, and approved by me, this 6th day of Dec., 1901. Frank Smith, Sheriff, by J. A. Burchett, Deputy."
The first substantial question raised by counsel for plaintiff in error is that the bond was void for the reason that the blank space provided for a description of the property attached was left blank. In this we cannot agree with counsel. This bond is not drawn under section 5710 of the Compiled Laws of Oklahoma of 1909, which provides for the delivery of property attached to the person in whose possession it was found, upon execution by such *402 person in the presence of the sheriff of an undertaking to the plaintiff, with one or more sufficient sureties resident in the county, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the court, or section 5740, which provides that if the defendant, or other person on his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff, by one or more sureties, to be approved by the court, in double the amount of the plaintiff's claim as stated in his affidavit, to the effect that the defendant shall perform the judgment of the court. The foregoing being the only sections of the statute providing for the execution of bonds, if the bond given in this is held to be valid, it must be upon the theory that it is a good common-law undertaking. This is the contention of counsel for defendant in error. The rule invoked by counsel for plaintiff in error, to wit, that "a bond executed in blank as to any material part thereof is void," is as applicable to a common-law as to a statutory obligation. "It is a well-settled rule of the common law that a deed delivered in blank is no deed." Williams v. Crutcher, 5 How. (Miss.) 71, 35 Am. Dec. 422. Conceding for the present that this bond is a good common-law bond, the question is: Was it executed in blank as to any material part?
The form of the bond was adopted by the parties by agreement, and it obviously contemplates that it should contain a description of the property attached. There is a blank space provided for this purpose, and the context clearly indicates where this description should be inserted. The recital of a description of property attached is not ordinarily necessary to the validity of a forthcoming bond. Forthcoming bonds wherein there is no description of the property redelivered have been held sufficient in Wright v. Keyes,
We are of the opinion that, whilst the instrument sued on is not a statutory undertaking, yet, being founded upon a sufficient consideration and given voluntarily upon the redelivery of the property attached, it is valid as a common-law bond. The rule seems to be, as stated by Mr. Justice Brewer in Johnson v. Weatherwax,
There are other errors assigned, complaining of alleged defects in the pleadings and proceedings at the trial; but after a careful review of the record, we are convinced that, if the rulings are erroneous at all, they do not affect the substantial rights of the adverse party.
"The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect." (Section *404
4344, Wilson's Rev. Ann. St. 1903; Mullen v. Thaxton,
The judgment of the court below is accordingly affirmed.
All the Justices concur.
