Wright v. Schmidt

| Iowa | Oct 5, 1877

Day, Oír. J.

1. pudding: conclusion, I. Appellant claims that the first count of the answer presents a complete defense because it denies that

appellant ever was or ever became the surety of the defendant, Schmidt. A careful examination of the answer, however, will discover that it does not contain the independent denial claimed, but denies that defendant ever was or became the surety of Schmidt for, or because, defendant for seventeen years has been a practicing attorney. The denial is a mere conclusion or inference from the fact that defendant was a practicing attorney, and could not become a surety.

2. ATToittrEv: boiidfon II. Appellant claims that this count of the answer presents a good defense because of its averment that defendant was at the time of the execution of the bond a practicing attorney, and the attorney of the defendant, Schmidt.

Section 2931 of the Codeis as follows: “No attorney or other officer of the court shall be received as security in any proceeding in court.” Appellee insists that the bond in question was not taken in any proceeding im, cowrt, and that it does not come under the provisions of this section. We deem it unnecessary to determine this question. In cases to which this section applies, it would justify the officer in refusing to accept an attorney as a surety, and would authorize the party for whose benefit a bond, with an attorney as surety, has been taken, to move for additional security or for the dissolution of an attachment, injunction, etc., for want of sufficient bond. But, we cannot believe that an attorney, who has secured for his principal, and, it may be, his client, all the benefits of a good and legal bond, can be permitted to shield himself behind the provisions of this-section, and thereby escape liability. Appellant cites no precedent for such a holding, and we are unwilling to make one to authorize a party to so effectually take advantage of his own wrong. Appellant had no right to insist that the officer should accept him as. a security, but having tendered himself as such and been accepted, thus depriving the interested parties of other security, he must perform the conditions of the contract into which he has voluntarily entered. Neither the interests of good morals would be promoted, nor respect for the law would be increased by permitting him to escape.

acceptance, III. Appellant further contends that the averment that he was never received as surety by the clerk, and that the bond approved by the clerk without reference to appellant’s name, presents a good defense. Appellant’s name is signed to the bond, and the apju’oval of the clerk is in due form indorsed thereon. All interested parties have the right to insist that this act of approval shall be construed to be what it publicly imports. It cannot be shown that the clerk secretly, in his own mind, attached no importance to the signature of appellant, and that he approved the bond with a mental reservation. The demurrer was properly sustained. \

Affirmed.