Kaufman v. Wessel

Maxwell, J. This is an action upon an undertaking in replevin. The defendants in error each recovered a judgment in the county court of Otoe county, against one Jacob Blum, and an execution was issued on each judgment and placed in the hands of the sheriff at 1:30 p.m., on the 12th day of Sept., 1879, and certain goods were levied upon under said execution as the property of said Blum, all the levies being upon the same goods. This property was claimed by George W. Boulware, who instituted an action of replevin and recovered possession of the same, and gave to the sheriff an undertaking in the sum of $536, signed by Boulware as principal, and George "W. Eiser and Moses Kaufman as sureties. On the trial of the action of replevin judgment was rendered in favor of the defendant and for a return of the property, or in case a return thereof could not be had, for the value thereof. The property was not returned nor was the judgment paid, and an execution issued on the judgment was returned unsatisfied. The sheriff then assigned the undertaking to the judgment creditors, who brought a joint action, thereon and on the trial recovered a judgment for the sum of $569.27. The first objection to the judgment is that it is for a sum in excess of the penalty in the undertaking. [163] The penalty in an undertaking fixes a limit beyond which the parties are not liable in an action upon the instrument, and a judgment in excess of the penalty cannot be sustained. But where it is clear that there are no other errors in the record, the court will permit the judgment creditors to remit the excess. And the defendants have leave to enter such remittitur in this case. Second. It is objected that the defendants in error could not join in the action, and we are referred to the case of Hicklin v. Neb. City National Bank, 8 Neb., 463, in support of that position. An examination of that case will show that the construction contended for cannot be sustained, as in that case the undertaking had not been assigned to the party bringing the action, nor did it appear that he was the judgment creditor. In the case at- bar there is no donbt that the sheriff being the obligee named in the undertaking could maintain an action thereon for the benefit of the creditors. The court found the value of the interest to be the sum of $569.27, the defendants in error therefore have an interest in the undertaking to the full extent of the penalty of the same. In the case of Rutledge v. Corbin, 10 Ohio State, 478, where an action was brought upon an attachment undertaking by the payee and subsequent attaching creditors, some of whom had attached only a part of the property while constructively in the hands of the sheriff, it was held that all parties having an interest as attaching creditors in the proceeds of the goods attached might be joined as plaintiffs in an action on the undertaking, although not named as payees therein. The reason assigned is, that all the attaching creditors had an interest in the attached property, and they were permitted to join for the purpose of protecting this interest. See also Tate v. O. &. M. R. R. Co., 10 Ind., 174. Goodnight v. Goar, 30 Ind., 418. Bliss on Code Pl., § 75. [164] We have no doubt that the creditors could join in the action, the judgment being a common fund out of which the executions are to be paid pro rata. It is claimed that Boulware was garnished in a certain action, and that judgment was rendered against him in that case. Without reviewing the garnishment proceedings at length, we think the court below was justified in disregarding them. Upon condition that the remittitur heretofore mentioned is entered, the judgment of the court below is affirmed. Judgment accordingly.