Edwards v. Pomeroy

• Decision Date: 07 April 1885
• Parties: EDWARDS v. POMEROY and others.
• Court: Colorado Supreme Court

6 P. 829

8 Colo. 254

EDWARDS v. POMEROY and others.

Supreme Court of Colorado

April 7, 1885

Error to the district court of Arapahoe county.

Lipscomb & Lipscomb, for plaintiff error, ex parte.

BECK C.J.

This is an action upon an undertaking executed in an attachment proceeding. Plaintiff in error brought suit against M. M Pomeroy, one of the defendants in error, causing an attachment to be issued and levied upon personal property when the undertaking in question was executed by said Pomeroy as principal, and the defendants in error Whitaker and Russell as sureties, and delivered to the sheriff, whereupon he released the property attached. The cause then proceeded to trial, and the plaintiffs recovered judgment for the sum of $1,573.90 and costs of suit, execution issued, and the sum of $174.36 was collected thereon, and the writ was returned unsatisfied as to the balance. It is now sought by the present suit upon the bond to recover from the principal and sureties therein the amount remaining unpaid upon said judgment.

This instrument is declared upon in the complaint as a statutory undertaking in attachment, but it is neither set in hoec verba, nor made an exhibit in the pleading. The complaint purports to state its legal effect, alleging that said Pomeroy expressed to the sheriff his desire to have the property discharged and released from the attachment writ, and that for this purpose he and the said sureties executed and delivered to the sheriff the said undertaking, 'whereby they and each of them undertook promised, and agreed that they would, on demand, pay to the plaintiff the amount of any judgment that might be recovered against the said Pomeroy in said attachment suit, not exceeding the sum of twenty-five hundred dollars.' The defense interposed was that the defendants never executed an undertaking of the purport and effect declared on.

Upon the production of the bond at the trial below, and the offer to introduce it in evidence on the part of the plaintiff, it was excluded by the court, on the ground that it had not been described in the complaint according to its legal effect. The plaintiff was thereupon nonsuited. These rulings are assigned for error, and raise the principal questions involved in the case. Section 114 of the chapter on 'Attachments,' in the Code of Civil Procedure, (Comp'n, 188,) being section 112 of the original act, provided that the sheriff should require, before releasing property attached, an undertaking conditioned, that if the attachment should not be dissolved, and if the plaintiff should recover judgment in the action, the property so released should be redelivered to the proper officer, to be applied to the payment of the judgment, or, in default thereof, that the defendant and his sureties should pay to the plaintiff the full value of...