Dackich v. Barich

• Decision Date: 05 November 1908
• Parties: DACKICH v. BARICH et al.
• Court: Montana Supreme Court

97 P. 931

37 Mont. 490

DACKICH v. BARICH et al.

Supreme Court of Montana

November 5, 1908

Appeal from District Court, Deer Lodge County; Geo. B. Winston Judge.

Action by George Dackich against George Barich and another. From a judgment for plaintiff, defendants appeal. Affirmed.

T O'Leary and W. H. Trippet, for appellants.

John H Tolan and W. B. Rodgers, for respondent.

SMITH J.

Plaintiff and respondent filed his complaint in the district court of Deer Lodge county, wherein he alleged: That, in an action theretofore begun in said district court, he, as plaintiff, sought to recover from one Milkovich the sum of $500; that on October 14, 1905, an attachment against the property of Milkovich was issued, and on the same day the sheriff levied upon, seized, and took into his possession a one-third interest in a certain stock of merchandise; that afterwards, and between the 14th day of October and the 18th day of October, Milkovich and the defendants executed and delivered to the plaintiff and the sheriff a "written undertaking pursuant to law," a copy of which is as follows: "We, Bob Milkovich, as principal and Geo. Barich and J. P. Stagg, as sureties, are hereby held and jointly and severally held and bound unto the above named plff. and to the sheriff of Deer Lodge county, in the state of Montana, in the sum of $1,067.00, in which sum we do hereby acknowledge ourselves jointly and severally indebted unto said sheriff and plff. aforesaid in the said sum of $1,067.00 for the payment of which sum well and truly to be made we do hereby bind ourselves, our heirs, and assigns jointly and severally and firmly by these presents. The conditions of the foregoing obligation are such that, whereas on the 14th day of October, 1905, the sheriff aforesaid did, under and by virtue of a certain writ of attachment, issued out of the above-entitled court and in the above-entitled action, levy upon, seize, and take into his possession a one-third undivided interest in and to that certain stock of merchandise situated and being in the Barich block, on the north side of East Park avenue and being between Cedar and Chestnut streets, in the city of Anaconda, in the county of Deer Lodge and state of Montana; and, whereas, the above-named principal and deft. is desirous of having the aforesaid property attached as aforesaid and released from the levy of the writ of attachment aforesaid: Now, therefore, in consideration of the release as aforesaid of the property aforesaid by the sheriff aforesaid, and to save him harmless and blameless in the premises, and should the aforesaid principal and deft. pay any judgment in the above cause that the plff. therein may recover against said principal and deft. aforesaid, together with all costs, interest, and atty's fees, if any should be allowed, then this obligation to be null and void, otherwise to be and remain in full force and effect." That upon the delivery of said undertaking, duly approved in writing on the back thereof by the plaintiff's attorney, Mr. Tolan, and duly filed with the clerk of the court, the attachment was discharged and the property released and delivered to Milkovich. That on January 27, 1906, the plaintiff recovered a judgment against Milkovich for $534.10, which the defendants have, after demand, refused to pay, and that execution against Milkovich has been returned wholly unsatisfied. Plaintiff demanded judgment for $534.10, together with interest and costs.

The defendants filed a motion to make the complaint more definite and certain by setting forth the time when the attachment was discharged and the property released, the time when the undertaking was executed and delivered, whether or not the undertaking was approved prior to its delivery to the sheriff, and when the property was redelivered to Milkovich. This motion was overruled. Defendants then filed special and general demurrers to the complaint. The special demurrer raises the same points as those found in the motion to make more definite and certain, and, in addition thereto, it is therein urged that there is a defect of parties plaintiff, because the sheriff of Deer Lodge county was not joined as a plaintiff, and a defect of parties defendant, because Milkovich was not sued; that the complaint is ambiguous and uncertain, in this, that the complaint alleges that the instrument sued on is an "undertaking pursuant to law" and the instrument exhibited is a common-law bond, a different instrument from that declared upon. The court overruled these demurrers. Thereupon the defendants answered (1) by denying that they made, executed, or delivered the bond set forth in the complaint; (2) by alleging that said instrument "was and is wholly without consideration," because the sheriff never made any levy and there was no attachment to release; (3) by alleging that the execution and return thereto were falsely and fraudulently issued and made to charge these defendants with the amount of the judgment, the one-third interest of Milkovich in the property alleged to have been attached being in the same condition and situation as when the alleged levy of the attachment was made and as subject to levy on execution as it was to the levy on attachment; (4) by alleging that the plaintiff has compromised with Milkovich and taken his note and other evidence of indebtedness for the amount of the judgment; and (5) by denying every other allegation of the complaint. The answer was afterwards amended so as to allege that at the time of the issuance of the attachment Milkovich had no interest in the stock of merchandise "of any value," that no part of said stock of merchandise was levied upon, and "that at the time defendants signed said bond in plaintiff's complaint mentioned to the sheriff of Deer Lodge county, and not to the plaintiff, it was understood and agreed by and between said defendants and said sheriff that said bond was for the sole and only purpose of securing to the said sheriff on said attachment the value of the interest of said Milkovich in said stock of goods; that said Milkovich did not at that time have or own any interest in said stock of goods, and, in order to induce said defendants to sign said bond, said sheriff represented to them that said bond was only for the purpose alone as aforesaid, and, relying upon said representation, defendants signed said bond." The reply denied all of the affirmative allegations of the answer as amended.

At the trial J. H. Duffy, Esq., testified that he prepared the so-called bond or undertaking, that the instrument was in exactly the same condition as when executed by the parties, and that no insertions or alterations had been made since its execution. The signatures of the parties to the instrument were duly proven. The record in the original attachment suit was offered in evidence by the plaintiff. This record contained, among other papers, a petition by the appellants here, Barich and Stagg, for leave to intervene in that cause, for the reason that Milkovich, notwithstanding the fact that he had a valid defense thereto, had withdrawn his answer, and in collusion with the plaintiff was about to allow judgment to go against him by default. In this petition for leave to intervene and their affidavits in support thereof, and also in their complaint in intervention subsequently filed, they allege, under oath, as a reason for their intervention, that they were interested in the result of the suit, because "the said George Barich and J. P. Stagg are the sureties on the bond given to the sheriff for the release of an attachment levied upon the property of the defendant Milkovich by virtue of a writ issued out of this court in this action, wherein in said bond the said Barich and Stagg obligated themselves to pay any judgment that might be recovered in this action against the said defendant." After these intervention papers were admitted in evidence, counsel for the appellants moved to strike them from the record, for the reason that, if they "were to be used for the purpose of an estoppel in any way, that an estoppel has not been pleaded, an estoppel of record." The court overruled the motion to strike, the judge stating that he was aware that ordinarily an estoppel must be pleaded, but that he would receive the papers as a part of the case generally, as part of the proceedings in connection with the writ of attachment and the entry of judgment. Mr. Duffy also testified that the approval of the plaintiff's attorney, dated October 18th, was not on the bond or undertaking on October 14th. Mr. Taylor, the undersheriff who had the writ of attachment for service, testified: "I did take possession. I took possession by telling him (Milkovich) that I took possession and serving the papers on him. That is them way I took possession-by serving the papers on him. That is the only way I took possession. This was in the saloon where Milkovich was. The saloon is connected by a side door to the grocery store." The bond or undertaking was received in evidence over the defendants' objection.

For the defense, George Barich testified that the undersheriff came to his store and inquired for Milkovich, saying he had a writ of attachment against him. Witness told the undersheriff that Milkovich had an interest in the store which had been one-third, but that he had drawn out "most everything he had in it, and it might not be one-third or anything." They then went into the saloon where Milkovich was. The undersheriff informed him, through Barich as interpreter that he had the writ of attachment. Barich advised Milkovich to pay the...