Palmer v. Seligman

• Decision Date: 01 November 1889
• Court: Michigan Supreme Court
• Parties: PALMER v. SELIGMAN ET AL.

43 N.W. 974

77 Mich. 305

PALMER v. SELIGMAN ET AL.

Supreme Court of Michigan

November 1, 1889

Error to circuit court. Wayne county.

Action by M. Clement Palmer, assignee of a bond of indemnity given to a sheriff, against Jacob Seligman and Edward H. Doyle impleaded with Louis, Nathan, Edward, and Charles Newbauer. Judgment for defendants. Plaintiff brings error.

CHAMPLIN, J.

The bond in suit was given to the sheriff of Montcalm county to indemnify him against loss, costs, and damages in case he would levy an attachment issued out of the circuit court for the county of Montcalm wherein Louis Newbauer, Nathan Newbauer, Edward Newbauer, and Charles Newbauer were plaintiffs, and Louis Simons was defendant, upon certain goods and chattels which appeared to belong to Louis Simons but which were claimed by E. Lewis, of the village of Edmore. The plaintiffs in the attachment suit composed a partnership under the firm name of L. Newbauer & Sons, and their place of business was Milwaukee, Wis. The bond stated that L. Newbauer & Sons as principal, and Jacob Seligman and Edward H. Doyle as sureties, were held and firmly bound unto John Q. Crippen Esq., sheriff of the county of Montcalm and state of Michigan, and was signed as follows: "L. NEWBAUER &amp SONS. [L. S.] Per M. E. POLLASKY.

JACOB SELIGMAN. [L. S.] E. H. DOYLE. [L. S.]" After the bond was delivered to the sheriff, the attachment was levied upon a stock of goods as being the property of Louis Simons; and thereupon one Isabella Lewis brought trover against the officer levying the attachment, and recovered judgment. The goods seized were sold under an order of the court, and the proceeds held until final judgment was obtained, and the avails were then paid over to the attorneys of L. Newbauer & Sons. This suit is brought by the assignee of the sheriff upon the indemnity bond. It appeared that M. E. Pollasky was a traveling salesman for L. Newbauer & Sons in Michigan, who were non-residents of the state of Michigan, and that he employed attorneys, and instituted the attachment suit. The sheriff refused to levy upon the goods mentioned until he was secured, and the aforesaid bond was given. In this suit the members constituting the firm of L. Newbauer & Sons were made parties defendant, but were not served with process. The sureties were served, and appeared, and defend upon the ground that they were induced to sign the bond as sureties by the representations made to them that said bond had been duly signed and executed by the principals therein named, and that such representations were false and fraudulent. Upon the trial the plaintiff introduced testimony showing the circumstances under which the bond was given, and also testimony...