Rowley v. Jewett

• Decision Date: 20 June 1881
• Citation: 9 N.W. 353,56 Iowa 492
• Parties: ROWLEY v. JEWETT.
• Court: Iowa Supreme Court

56 Iowa 492

9 N.W. 353

ROWLEY

v.JEWETT.

Supreme Court of Iowa.

Filed June 20, 1881.

Appeal from Polk circuit court.

Hoyt Sherman sued out an attachment against one Stamper, which was placed in the hands of the plaintiff for service, and he thereunder attached certain personal property belonging to said Stamper. Thereupon the latter and the defendant, as his surety, executed to the sheriff a delivery bond, upon which this action was brought. It was alleged in the petition that Sherman had obtained judgment, and that neither Stamper nor the defendant had delivered said property to the sheriff as required by the conditions of the bond, but had wholly failed, although often requested, to do so, and that the “sheriff being liable to produce said goods or satisfy said judgment, and the plaintiff being liable to account to the sheriff for his acts in the premises and to pay said bond, * * * did himself pay off and satisfy said judgment. * * *” The allegations of the petition were denied by the defendant, and the trial was to the court, judgment for the plaintiff, and defendant appeals.Barcroft, Given & McCaughan, for appellant.

Phillips, Goode & Phillips, for appellee.

SEEVERS, J.

1. The evidence warranted the circuit court in finding the plaintiff purchased the judgment of Sherman and the same was duly assigned to him. This being so, the plaintiff we think, became thereby vested with all the rights of Sherman as to the enforcement or collection of the judgment. If, therefore, Sherman could maintain and resort to an action on the bond to enforce the collection of the judgment before the assignment, the plaintiff could do so afterwards. It is provided by statute that, “when a bond * * * given to any officer * * * is intended for the security of * * * particular individuals, suit may be brought thereon in the name of the person intended to be thus secured. * * *” Code, § 2552. This section, in substance, was copied from Revision, § 2787, and is literally the same as section 1693 of the Code of 1851. The bond sued on was given when section 3219 of the Revisison was in force. This last section, in substance, is the same as section 1876 of the Code of 1851. It will be seen, the statute in force now, when the bond was given, and when Shepherd v. Collins, 12 Iowa, 570, was decided, are in substance the same, and it was held in that case, which was a suit on a bond of the same character as the one sued on, that such bond was intended for the security of the plaintiffs in attachment and they could maintain an action thereon. We are not disposed to depart from the construction of the statute adopted in the cited case. It follows, therefore, that Sherman could have maintained an action on the bond, and this the plaintiff may do as the assignee of the judgment. It is immaterial what constituted or was the inducing cause that moved the plaintiff to purchase and procure an assignment of the judgment. He nevertheless is the owner thereof and entitled to all the rights of such. It is possible that evidence tending to show the purchase and assignment was inadmissable under the allegations of the petition, but no objections were made thereto. Had there been, no doubt, if deemed necessary, the plaintiff would have amended his petition,

2. The bond is of a penal character, and at the time it was signed by Stamper and the defendant was conditioned as follows: “The condition of the above obligation is such that, whereas, the said sheriff did, on or about the twenty-first day of November, 1870, attach the furniture and photographic outfit of said F. M. Stamper to satisfy a claim * * * in favor of Hoyt Sherman, we obligate ourselves * * * to cause said attached goods, or their value, to be delivered to said sheriff within 20 days after the rendition of any judgment in favor of Hoyt Sherman on the above claim against said property.” Stamper presented this bond to the plaintiff, and before he accepted it the plaintiff in good faith, with honest intent, and at the request of Stamper, for the purpose of identifying the property attached, interlined therein, immediately after the name Stamper, the following: “Consisting of six sofa chairs, one settee, one round table, one clock, one mirror, one show case, one piece of carpet containing 49 yards, 20 large pictures and frames, and one-half size camera.” The defendant insists there was another interlineation, but as to this there was a conflict in the evidencc. We, therefore, cannot find it to be true.

When the bond was thus interlined and delivered, the attached property was released. The interlineation described the property in the precise terms of the return on the attachment. The interlineation was made without the knowledge or consent of the defendant, and his counsel insist the bond, by reason thereof, is void as to him. We are of opinion the legal effect of the bond was not changed by the interlineation. No one obtained any advantage, nor was any one injured thereby. If it had not been made the property could have been readily identified by the return on the attachment, and this was the property the obligors bound themselves to return to the sheriff. When described in the bond, as was done by the interlineation, its effect may have been to make additional evidence of the property attached. If so, such was not the intent of either Stamper or the plaintiff, and if such was the intent it does not follow the bond for this...