Coe v. Straus

[73] By the Court, Cole, J. We think the complaint in this case unquestionably sets forth a good cause of action. It is objected that the complaint is defective because it does not contain an averment that a warrant of attachment was issued in the suit mentioned in the complaint, as having theretofore been instituted against Rcedel and Morgan; or aver that proceedings were had to obtain one; The suit is upon an undertaking given by Rinde!, Coe and Decoudres. And as matter of inducement the complaint states, “ that on or about the thirtieth day of December, 1857, an action was commenced in the circuit court of said county by this plaintiff against Chas. F. Roedel and L. C. Morgan, and their property attached to satisfy the demand of the plaintiff amounting,” &c. The complaint then further states that Coe and Decoudres became bail for the defendants in that action, and entered into an undertaking which is set forth in heec verba in the complaint; that upon the execution of the undertaking the property attached was returned to the defendants Roedel and Morgan; that judgment was afterwards obtained ■ against the defendants; an execution issued thereon which was returned unsatisfied, whereby Coe and Decoudres became indebted to to pay the judgment recovered. This is the substance of the complaint, and we think it unobjectionable in form or substance, or at all events, that it is good upon general demurrer. The court therefore very properly overruled the demurrer taken to it. It is further objected, that the undertaking was not “ an instrument for the payment of money only,” but we think otherwise. It is also insisted, that when the demurrer was struck off the files for frivolousness, the plaintiffs in error were only in default and should have had leave to answer or have had notice of the assessment of damages. As the action was one arising on an instrument for the payment of money only, and the complaint was sworn to, and personal service of the [74] summons and complaint having been had, the defendant in error brought his case within the provisions of sec. 27, chap, 132, R. S. The judgment must be affirmed.