Moffitt v. Garrett

• Decision Date: 09 March 1909
• Citation: 100 P. 533,23 Okla. 398,1909 OK 61
• Parties: MOFFITT et al. v. GARRETT.
• Court: Oklahoma Supreme Court

100 P. 533

23 Okla. 398, 1909 OK 61

MOFFITT et al. v. GARRETT.

Supreme Court of Oklahoma

March 9, 1909

Syllabus by the Court.

An obligor on a bond to discharge an attachment, under the provisions of section 4404, Wilson's Rev. & Ann. St. Okl 1903, conditioned that the defendant will perform the judgment of the court in the action in which the attachment is issued, is absolutely liable in an action against him on the bond for the amount recovered in the action in which the bond was given, without reference to the question whether the attachment was rightfully or wrongfully issued, and the defendant is precluded by such bond from controverting the grounds of the attachment.

[Ed Note.-For other cases, see Attachment, Cent. Dig. § 1199; Dec. Dig. § 334. ^[*]]

Error from Probate Court, Oklahoma County.

Action by I. D. Garrett against Carl L. Moffitt and others. Judgment for plaintiff. Defendants bring error. Affirmed.

An obligor on a bond to discharge an attachment, under Wilson's Rev. & Ann.St.1903, § 4404, conditioned that defendant would perform the judgment, is absolutely liable thereon for the amount recovered, whether the attachment was rightfully or wrongfully issued.

On the 28th day of July, A. D. 1906, the defendant in error, as plaintiff, instituted his action in the probate court of Oklahoma county, territory of Oklahoma, against the plaintiffs in error, C. L. Moffitt and L. R. Moffitt, as defendants, to recover the sum of $102.50, alleged to be due on an award of arbitrators between the said I. D. Garrett and C. L. Moffitt, and on the same day filed proper affidavit for attachment against both of said defendants, and writ of attachment was issued and levied on a certain stock of goods. After said levy had been made, the defendant Carl L. Moffitt with L. A. Fightmaster as surety, executed the following bond:

"Territory of Oklahoma, County of Oklahoma-ss.: In the Probate Court in and for said County and Territory. I. D. Garrett, Plaintiff, v. C. L. Moffitt et al., Defendants. Undertaking to Discharge Attachment. Know all men by these presents, that we, the undersigned, are held and firmly bound unto I. D. Garrett, the plaintiff in the above-entitled action, in the penal sum of two hundred and five dollars ($205.00), lawful money of the United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally by these presents. The condition of the above obligation is such that whereas, the above-named plaintiff, I. D. Garrett, did on the 28th day of July, 1906, begin the above-entitled action against the above-named defendants, C. L. Moffitt and L. R. Moffitt, to recover the sum of one hundred two and 50/100 dollars ($102.50), and caused an attachment to be issued and levied upon the property of said defendants, and this bond is given for the purpose of having said attachment discharged, now therefore, if the said defendants shall perform the judgment of the court in the above-entitled action, and shall well and truly pay the amount of any judgment that shall be rendered against them in said action, then this obligation to be void, otherwise to remain in full force and effect. Witness our hands this 30th day of July, A. D. 1906. Carl L. Moffitt. Mrs. L. A. Fightmaster.

Taken and approved this 30th day of July, A. D. 1906. W. P. Harper, Probate Judge."

That after the approval of said bond said attachment was discharged, and the goods levied on thereunder delivered to and placed in the possession of L. R. Moffitt, by and with the consent of the said defendant Carl L. Moffitt. The affidavit for said attachment was made before Wm. P. Harper, judge of the probate court, on the 28th day of July, A. D. 1906, and said officer in attesting said affidavit failed to affix the seal of said court thereto. On the 28th day of September, A. D., 1906, said cause was tried by a jury and verdict returned in favor of the plaintiff in the sum of $102.50. Afterwards judgment was entered in accordance with the verdict against the said defendant C. L. Moffitt, and in favor of the defendant L. R. Moffitt for his costs. Afterwards, on the 20th day of December, A. D. 1906, said plaintiff, I. D. Garrett, instituted his action in said court against said defendant Carl L. Moffitt, and his surety, L. A. Fightmaster, on said bond. On the 28th day of June, A. D. 1907, the cause came on for hearing before the court without a jury, at which time said findings were made, and also judgment was rendered against both of the defendants, Carl L. Moffitt and L. A. Fightmaster, for the amount of said judgment, $102.50, and the costs and interest. The record recites that the court finds that prior to the beginning of said action, and the levying of said attachment ancillary thereto, the defendant C. L. Moffitt had sold the goods thus levied on to the said L. R. Moffitt, and at the time of said levy and the execution of said discharging bond they were the property of the said L. R. Moffitt. And, further, as conclusions of law, that the defendant L. A. Fightmaster, surety on said bond, was estopped to show that the allegations in said attachment affidavit were not true, or that the ownership of the property, at the time of the levying of the attachment and the giving of said bond, was in the said L. R. Moffitt. Motion for a new trial was made in due time, and an appeal prosecuted by petition in error to the Supreme Court of the territory of Oklahoma, and, by virtue of the provisions of the enabling act and the schedule to the Constitution, is now properly before this court for review.

John L. Jenkins, for plaintiffs in error.

J. L. Brown, for defendant in error.

WILLIAMS J.

Section 4404 (chapter 66, art. 11, § 206) Wilson's Rev. & Ann St. 1903, provides: "If the defendant, or other person on his behalf, at any time before judgment, causes an undertaking to be executed to the plaintiff, by one or more sureties, resident in the county, to be approved by the court, in double the amount of the plaintiff's claim as stated in his affidavit, to the effect that the defendant shall perform the judgment of the court, the attachment in such action shall be discharged, and restitution made of any property taken under it or the proceeds thereof. Such undertaking shall, also, discharge the liability of a garnishee in such action, for any property of the defendant in his hands." The bond upon which the action was brought in the lower court was made by virtue of said section, and the sole question involved in this record is whether or not the undertakers on such bond are bound to perform the judgment of the court, by paying such judgment, regardless of whether or not the attachment was rightfully brought, or the property seized belonged to the defendant in the attachment writ. Section 52 of the justice's act (Gen. St. Kan. 1868, p. 787, c. 81), is exactly the same as section 4404, supra. In the case of Endress v. Ent, 18 Kan. 239, Mr. Chief Justice Horton, in delivering the opinion of the court, said: "It is insisted by the defendants that the undertaking was intended as a forthcoming bond, as described in section 33 of the justice's act (Gen. St. 1868, p. 782), and they cite the action of the justice in overruling the motion of Ent to discharge the attachment. The bond is very dissimilar from the undertaking required by section 33, and cannot by us be...