Woodman v. Calkins
| Decision Date | 02 October 1893 |
| Parties | WOODMAN v. CALKINS et al. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; W. H. Hunt Judge.
Action by E. E. Woodman against R. M. Calkins and others. Judgment for plaintiff. Defendants appeal. Affirmed.
The other facts fully appear in the following statement by DE WITT, J.:
This action was commenced by plaintiff, as constable, against the defendants, who were sureties on an undertaking to indemnify plaintiff, as constable, for holding property which he had seized on an attachment, and which was claimed by persons other than the defendant in the attachment suit. Archie Beaton brought suit against Patrick Leo, in the justice's court, to recover $74. A writ of attachment was issued in that action, and given to plaintiff, a specially deputed constable, for service. The constable levied upon the sum of $45.85 in the hands of P.J. Touhy. Wise & Goodkind served written notice upon the constable, claiming the moneys so levied upon as belonging to them, and demanding the delivery of the same to them. The constable informed the plaintiff in the action of that fact. Thereupon the defendants executed and delivered to plaintiff a written undertaking, which is attached to the complaint in this action. In consideration of that undertaking, the constable paid over the money so levied upon to the plaintiff in the action. The undertaking was to the effect that the parties thereto would save the plaintiff herein harmless from said claim of Wise & Goodkind. Afterwards Wise & Goodkind brought action against this plaintiff, and recovered judgment against him for the amount which they had so claimed as their property in the hands of said Touhy. Plaintiff now brings action against these defendants, sureties on said undertaking, for damages by reason of the judgment against him, which he had paid. The undertaking which these defendants gave named, as parties thereto, Archie Beaton as principal, and R. M. Calkins and J S. Featherly as sureties. It was executed by the sureties only, and not by the principal. The above facts appear by the complaint in this action. The answer, among other things, set forth "that it [the undertaking or bond] was signed by these defendants as sureties, on the condition and understanding that he [said Beaton] should sign it before it should be delivered; that said Beaton never signed the same nor did any one in his behalf; and that these defendants never intended nor consented that it should be delivered without his signature." On the motion of plaintiff, the court rendered judgment in favor of plaintiff, upon the pleadings. Did the plea of defendants, as to the agreement in reference to the delivery of the undertaking, form an issue which should have been tried? If so, the judgment on the pleadings is contended by appellants to be error.
David B. Carpenter, for appellants.
R. R. Purcell, for respondent.
The foregoing statement of the case by Mr. Justice DE WITT is sufficient for the purposes of this decision. The judgment of the trial court, in our opinion, should be affirmed. Beaton the principal, who procured the undertaking to be executed by the sureties on his behalf, and received the attached money from the officer, (which money was not subject to his attachment,) was liable therefor, without signing the undertaking, in an action by the officer, as well as to reimburse his sureties for whatever they were compelled to pay by reason of their engagement in said undertaking on behalf of the principal. Both the principal and sureties could have been sued in the same action, or, if the principal was not joined in the action brought by the officer against the sureties, they could have required the principal to be brought in and made party defendant in the action against the sureties, and have execution levied against the principal...
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