Dangel v. Levy

• Decision Date: 01 January 1878
• Citation: 1 Idaho 722
• Parties: Ferdinand Dangel Et Al., Respondents, v. Davis Levy Et Al., Appellants.
• Court: Idaho Supreme Court

1 Idaho 722

Ferdinand Dangel Et Al., Respondents, v. Davis Levy Et Al., Appellants.

Supreme Court of Idaho

January 1, 1878

RECORD ON APPEAL.-The record on an appeal to this court ought not to be encumbered with useless repetitions.

ERRORS WHICH DO NOT PREJUDICE.-For errors and defects in the pleadings and proceedings, which do not affect the substantial rights of the party complaining, a judgment will not be reversed.

BOND-LIABILITY.-The affixing of the sum of one thousand dollars between the signature and the seal of the obligor to a bond, the penalty of which is two thousand dollars, will not have the effect to limit his liability to one thousand dollars.

UNDERTAKING FOR INJUNCTION-JUSTIFICATION OF SURETIES.-Under our statute in a bond or undertaking for an injunction for two thousand dollars or less, a surety cannot justify in a sum less than that named as a penalty in the bond or undertaking.

UNDERTAKING-ALTERATION OF-FRAUD.-When, in an undertaking for two thousand dollars the figures "$1,000" entered between the signature and seal of one of the sureties, were erased after it was signed by him; this was no fraud upon any other surety who signed the undertaking after the erasure.

UNDERTAKING FOR INJUNCTION-ERASURE IN.-Where an undertaking for an injunction was executed and delivered after an erasure had been made, it cannot be presumed that the obligee was a party to such alteration or erasure.

INSTRUCTIONS.-The relevancy of instructions is to be determined by the evidence in the case.

APPEAL from the Second Judicial District, Ada County.

Alanson Smith and Albert Heed, for the Appellants. Brumback &amp Cahalan, for the Respondents.

HOLLISTER C. J.,

delivered the opinion;

CLARK and PRICKETT, JJ., concurring.

This suit was instituted in the district court of Ada county by the respondent against the appellant, Margaret Ray and J. C Sims, on a joint and several injunction bond executed by them, in the penal sum of two thousand dollars, in which a judgment was obtained against the appellant on the twenty-sixth day of March, 1877, for two thousand dollars and costs, there having been no service of summons upon the other defendants. From the judgment and from the order refusing a new trial, the case is brought here by appeal.

There are numerous errors assigned, for which the appellant claims that the judgment should be reversed, which we will proceed to notice in their proper order: 1. In overruling the demurrer to the complaint. 2. In holding that the complaint stated facts sufficient to constitute a cause of action. The latter specification is subdivided as follows:

1. Because there is no sufficient allegation in said complaint of plaintiff's ownership of the property alleged to have been received by the sheriff and converted to the use of the defendant Margaret Ray, and for other purposes.

2. Because there is no allegation of the insolvency of the defendant Margaret Ray, and nothing to show that plaintiff Dangel might not have recovered the value of the property so seized by the sheriff by bringing his suit therefor, after the removal of the prohibition of said plaintiff to bring his suit, by the final dissolution of the injunction.

3. Because the said plaintiff has not exhausted the remedies required to be applied before the defendant Levy could be made legally answerable upon the bond in suit.

4. Because said defendant Levy's liability as a cosurety on said bond could not attach, if at all, which is not conceded, until it was either averred or alleged in said complaint, that

defendant Margaret Ray, who appears as principal in said bond set forth in plaintiff's complaint, was unable to respond in damages.

5. Because two causes of action were improperly united.

As these objections will go to the foundation of the action, we will proceed to consider them in the order in which they are taken.

First, that there is no sufficient allegation, etc. After stating the execution of the bond by the obligors, the determination of the injunction suit, and the judgment of the district court that the plaintiff Margaret Ray was not entitled to the injunction, the complaint alleges that plaintiff was damaged by the injunction in the sum of two thousand dollars, as follows: cash paid J. Brumback, attorney for plaintiff in the injunction suit, three hundred dollars; cash paid F. E. Ensign, attorney for plaintiff, in the sum of two hundred dollars; cattle sold by Margaret Ray after the service of the injunction, of the value of six hundred and sixty-five dollars, and cattle sold by William Bryon after the service of the injunction, of value of eight hundred and thirty-five dollars, and interest on the cattle sold, two hundred dollars. It may be conceded, so far as the question thus presented is concerned, that there is no sufficient allegation of property in the cattle, in the complaint, to entitle the plaintiff to a recovery of their value; but as the plaintiff is entitled to his action for the recovery of the fees paid by him to his attorneys in the injunction suit, and which were properly alleged in the complaint, the demurrer going to the whole cause of action and not to that portion of it, it was properly overruled. Had the defendant wished to take advantage of the defect complained of, he should have demurred to the complaint because it was ambiguous or uncertain in that respect. Had this been done, the court could have required the plaintiff to amend the complaint, or precluded him from offering any proof as to the cattle.

The second reason assigned under this head is not tenable. The condition of the bond sued on was that Margaret Ray as principal, and J. C. Sims and D. Levy as sureties, do jointly

and severally undertake, etc., that in case the said injunction shall issue, the said plaintiff, Margaret Ray, will pay to the said Ferdinand Dangel, enjoined such damages not exceeding two thousand dollars, as such party may sustain by reason of the said injunction, if the district court finally decide that the plaintiff was not entitled thereto. The obligation to answer in damages, by the sureties on the bond, was not made to depend upon the insolvency of the principal, but it became absolute by the terms of the undertaking, when the court in which the injunction suit was pending should finally decide that the plaintiff was not entitled to the injunction.

If the principal should pay the damages, the sureties would of course be relieved from liability, but a suit against a principal is not necessary to determine the liability of the sureties.

The obligee is at liberty to bring his suit against the principal, but he is not obliged to do so, with a view to determine her insolvency, before proceeding against either of the sureties. Nor is the fact that the plaintiff could have brought suit to recover the property or the value thereof against the sheriff or other persons holding it after the prohibition was removed a sufficient ground of objection to the action. The plaintiff had his election to bring his suit for the recovery of the property or its value, against anyone who had converted it to his use, after the prohibition was removed, or on the bond, and having chosen the latter, it does not lie in the mouth of the defendant to complain.

The third and fourth reasons come within the same principle. It is further claimed that the complaint is bad, because the plaintiff united two causes of action, to wit: a claim for the amount paid Brumback, and the amount paid Ensign, in the same action. It seems hardly necessary to say that the amount paid to these two attorneys, being for fees in the injunction suit, constituted but one cause of action, and was recoverable as part of the damages sustained by the injunction.

The third specification of errors is as follows: The court erred in overruling said demurrer, on the various grounds

therein set up, other than those specifically above enumerated-reference to said demurrer being had, will more fully and at length appear-especially, that the complaint is ambiguous, unintelligible, and uncertain, and that there is a misjoinder of parties defendant.

We have disposed of the questions arising upon two of the grounds of demurrer, to wit, that several causes of action are improperly united, and that the complaint does not state facts sufficient to constitute a cause of action, and it only remains to notice, under this specification, the remaining grounds of objection set up by the demurrer. The first is that the complaint is ambiguous, unintelligible, and uncertain in this: plaintiff avers that defendants made and filed their bond in suit, and in charging defendants for cattle sold by Wm. Bryon. As it was proper for the plaintiff to sue on the injunction bond and allege as a portion of the damages for the breach thereof, that Bryon sold cattle that he was restrained from recovering by the injunction, and as the plaintiff has done this, though in not very apt terms, it must be confessed, it is difficult to see that the complaint was objectionable on this point. The demurrer, we think, on this ground, was quite as ambiguous and unintelligible as the complaint, and failed to point out very clearly any proper reason for the objection.

The second is, that there was a misjoinder of parties defendant. This general statement, under the old rules of pleading would be bad; for it is in substance a plea in abatement, and such plea must be so pleaded as to enable the plaintiff, in a subsequent suit for the same cause, to supply the defect or avoid the mistake upon which the plea is founded, or, in other words, it must be so framed as to give the plaintiff a better suit. Under our statute, there is no ground for any such objection. The second clause of section 32,...