Durand v. Johnson

Gill, J. (after stating the facts). Appellant files the following specifications of error: (1) The court erred in not .sustaining appellant's motion for judgment against appellee and his bondsmen on his forthcoming bond, -made upon the finding of the court of judgment for appellant for his debt as claimed and judgment sustaining the attachment. (2) The •court erred iff overruling appellant’s demurrer to the inter-pleader’s interplea. (3) The court erred in charging appellant with the costs of the term at the May term, 1899, when a continuance was asked for by appellee and to him granted. (4) The court erred in overruling appellant’s motion for new trial. (5) The court erred in overruling appellant’s motion to retax costs. First. Did the court err in refusing appellant’s motion for judgment against appellee and his bondsmen? The bond given by appellee is as follows: “In the United States Court in the Indian Territory, Central District. Case No.---. John D. Ourand, Plaintiff, vs Harry Johnson, Defendant. We undertake and are bound to the plaintiff, and John D. Ourand, in the sum of nine hundred dollars, that this defendant, Harry Johnson, shall perform the judgment of the court in this action or that the undersigned * * * will have the personal property levied upon in this action attached in this action or its value Four Hundred and Fifty Dollars, forthcoming and subject to the order of this Court for the satisfaction of such judgment. Harry Johnson. H. F. Schreiner. J. J. McAlester.” By this bond the appellee and his [367] sureties agreed that they would perform the judgment of the court in the action, or that they would have the property attached in the action or its value, forthcoming and subject to the order of the court, for the satisfaction of such judgment. The judgment of the court in this action was against appellee Johnson and in favor of appellant, both upon the original cause of action and on the attachment, but the judgment on the interplea was in favor of Mrs. Johnson and against the appellant. The conditions of the undertaking were that Harry Johnson should perform the judgment of thecourt in this action, or that the bondsmen would have the personal property or its value, forthcoming and subject to the order of court. The judgment of the court in the action upon the interplea was that the property should be returned to its owner, the interpleader, Mrs. Johnson, and on this judgment the appellant would haie no claim whatever against this property • nor against this bond, Second. Did the court err in overruling appellant’s demurrer to the interplea of Lizzie Johnson? The demurrer reads as follows: “Now comes plaintiff, John D. Ourand, and demurs to the interplea of Lizzie Johnson herein, for the reason that said interplea states no defense to plaintiff’s cause of action against defendant or his bondsmen herein." This demurrer was, we think, properly overruled. The interpleader, Lizzie Johnson, made a claim for the property attached. She did not have to make any defense whatever in the original case, and because she does not make her claim of interplea vulnerable to demurrer. Third. Did the court err in charging appellant with the costs of the term at the May, 1899, term, when a continuance was asked for by appellee and granted to him? From the [368] record it appears that appellant announced ready for trial in July,' 1899, one of the daj^s of the May term of court, and on said daj found he was not ready for trial, and the court, instead of nonsuiting him after the trial had begun, continued the hearing of the case under conditions. Appellant failed to comply with these conditions, but at a subsequent day of the term of court, the court having overruled his motion to withdraw his announcement of ready, on motion of defendant taxed the costs of the term to him and continued the case. We do not think this was an abuse of discretion by the court. It was for the court to say whether or not appellant had placed himself in such position as to have the cause continued, and it was for the court to say, in its discretion, at whose costs the case should be continued. Fourth, Inasmuch as we have found that there was no error in the court’s action, there is no error in the court’s having overruled appellant’s motion for new trial. Fifth. For the reasons given in response to the third claim of error by appellant, and for the further reason that the record does not disclose any order ■ of the court overruling or passing upon appellant’s motion to retax costs, we do not consider that question as being properly in this court for adjudication. Finding no error in the record, the judgment of the court below is affirmed. Townsend and Lawrence, JJ., concur-.-