Riggan v. Crain

• Decision Date: 05 November 1887
• Citation: 5 S.W. 561,86 Ky. 249
• Parties: RIGGAN and others v. CRAIN.
• Court: Kentucky Court of Appeals

5 S.W. 561

86 Ky. 249

RIGGAN and others v. CRAIN.

Court of Appeals of Kentucky.

November 5, 1887

Appeal from circuit court, Edmonson county.

J. S Lay, for appellants.

Edwards & Hazelip, for appellee.

PRYOR C.J.

The appellants were sued as the sureties on an injunction bond executed by W. H. Riggan to the appellee, D. L. Crain enjoining the collection of an execution, then in the hands of the sheriff, in favor of the appellee against him.The injunction was dissolved, and these sureties now say that the facts alleged in the petition do not authorize a recovery for the reasons-- First, that there is no averment that the debt is unpaid, second, that there is a failure to allege that the appellee lost his debt by reason of the injunction; third, a failure to allege that the property levied on was subject to the execution that had been enjoined.

The plaintiff, appellee, having set forth the undertaking in the bond, which was that "we undertake to satisfy the execution which the plaintiff in this action seeks to enjoin to the extent which the injunction may be dissolved, not exceeding the sum of $220," etc., proceeds to allege that the injunction was wholly dissolved, and the defendants had failed to satisfy the execution to the extent of $220, or any part of it, and that it is yet due, owing, and unpaid.This is a sufficient averment as to the breach of the covenant as to payment; and, as to the second and third objections made, it is immaterial whether the property was or not subject to the execution, or that the plaintiff had lost his debt by reason of the injunction.

The sureties made themselves primarily liable by undertaking to pay the debt or the execution to the extent it might be dissolved, regardless of the condition of the execution debtor; and the only inquiry to be made when the surety had signed the bond is, did the chancellor dissolve the injunction? as it is not pretended or pleaded that the debt had been paid since the dissolution of the injunction.

The material inquiry in the case is as to the manner of executing the bond.It is alleged and not denied that the authority to sign the bond was merely verbal; and, in fact, any authority given to sign the covenant is controverted.It appears that the clerk signed the names of these sureties upon the verbal authority given the principal, as represented by the latter, and issued the injunction.

After the injunction had been granted, and the writ issued, the clerk, as we must assume, discerning that no liability existed on the part of the surety, required other security and thereupon E. S. Riggan, who was the son of the debtor, executed this writing: "I, E. Riggan, hereby ratify and confirm the signing of my name by my father, W. H. Riggan, to the injunction bond in the case of D. L. Crane, now pending in the Edmonson circuit court, and do acknowledge myself...