Larson v. Hanson

• Decision Date: 13 April 1911
• Citation: 131 N.W. 229,21 N.D. 411
• Parties: LARSON et al. v. HANSON et al.
• Court: North Dakota Supreme Court

21 N.D. 411

131 N.W. 229

LARSON et al.

v.HANSON et al.

Supreme Court of North Dakota.

April 13, 1911.

Syllabus by the Court.

In an action of claim and delivery, for the purpose of regaining possession of the property, the defendants, with sureties, executed a redelivery undertaking conditioned as provided by section 6922, R. C. 1905, “for the delivery of the said property to the plaintiffs, if such delivery shall be adjudged, and for the payment to them of such sum as may, for any cause, be recovered against the defendants in this action.” Plaintiffs recovered merely a money judgment against the defendants. In an action against the sureties on such undertaking, the only breach of its conditions alleged in the complaint being the nonpayment of such judgment, held, that the complaint fails to state a cause of action.

The obligation of the sureties for the payment “of such sum as may, for any cause, be recovered against the defendants” is not absolute, but conditional merely. Their obligation will be construed in the light of section 7075, R. C., which requires that a judgment in plaintiff's favor shall be in the alternative, “for the possession or for the recovery of the possession, or the value thereof in case a delivery cannot be had, and for damages for the taking and detention thereof.”

In a claim and delivery action, a judgment merely for the value of the property and for damages may be rendered, where the testimony discloses that the property has been destroyed or lost and cannot be returned; and where such a judgment has been rendered, and there is no proof to the contrary, it will be presumed as against the defendant that the property has been destroyed or lost and cannot be returned; but such presumption cannot be indulged as against the sureties on the redelivery undertaking. As against the latter, such exceptional facts warranting a money judgment must be alleged and proved, in an action on the undertaking.

Appeal from District Court, Stutsman County; E. T. Burke, Judge.

Action by L. O. Larson and another against Albert Hanson and another. Judgment for plaintiffs, and defendants appeal from an order denying a new trial. Reversed and remanded.

John Knauf, for appellants. J. A. Coffey and S. E. Ellsworth, for respondents.

FISK, J.

Action to recover on a redelivery undertaking executed by defendants as sureties, in an action to recover the possession of specific personal property, in which the provisional remedy of claim and delivery was invoked.

Such action was instituted and prosecuted by respondents herein against William and W. L. Cavern. Judgment was rendered in such action against William Cavern alone, and is for the recovery of money only, to wit, the sum of $1,562.45, and in no manner providing for nor adjudging the delivery to plaintiffs of the property thus rebonded. Failing to realize the amount of such money judgment upon execution, this action was instituted to recover from these defendants the amount thereof, with accrued costs. Plaintiffs had judgment in the court below for the sum prayed for. A motion for a new trial was made, and an order entered denying the same, from which order this appeal is prosecuted.

Most of appellants' brief consists of assignments of error, there being 53 in number, none of which are assigned in accordance with rule 14 of this court (91 N. W. viii). They are a mere duplication of the specifications of error, and no reference is made to the page of the abstract wherein the particular specifications may be found, nor to the page or pages of the abstract in which the matter upon which the error is assigned may be found. Nor has counsel attempted in his brief to treat each assignment or group of assignments separately. Owing to the manner in which appellants' brief is prepared, we might decline to notice any of the assignments of error; but we have concluded to dispose of appellants' main contention, which, we understand, is that the judgment entered in the claim and delivery action is not such a judgment as the law authorizes in such an action. In other words, that the only judgment which could have been legally entered was one in the alternative for the return and delivery of the property to the plaintiffs, in case a delivery could be had, or its value, in case a delivery could not be had, and damages for its detention, if any.

The judgment in the claim and delivery action being one for money only, appellants contend that by the terms of the redelivery undertaking there is no liability. In other words, it is urged, as above stated, that the only judgment contemplated, whereby these sureties might become liable on the bond, was a judgment in plaintiffs' favor for the return of the property mentioned in such undertaking, or its value, in case a delivery cannot be had, and they cite several authorities in support of their contention; but respondent contends that they are all cases under statutes and undertakings differing from the statute in this state, and the undertaking in the case at bar. Section 6922, R. C. 1905, prescribing the undertaking required in order to obtain a redelivery of the property to defendant, reads: “The defendant may * * * require the return thereof upon giving to the sheriff a written undertaking executed by two or more sufficient sureties to the effect that they are bound in double the value of the property as stated in the affidavit of the plaintiff for the delivery thereof to the plaintiff, if such delivery is adjudged and for the payment to him of such sum as may for any cause be recovered against the defendant.” The conditions of the undertaking signed by defendants are in strict conformity to the above statute; the obligation of the undertaking being as follows: “Now, therefore, we, the subscribers hereto, do hereby undertake and become bound to the plaintiffs in the sum of $2,000 for the delivery of the said property to the plaintiffs, if such delivery shall be adjudged, and for the payment...