Pilger v. Marder, Luse & Co.

Harrison, O. J. April 30,1887, A. P. Pilger, P. Schwenk, and T. H. Eg-bert commenced an action of replevin in tbe district court of Madison county to recover possession of certain designated chattel property. Tbe defendants in tbe suit were tbe firm of Norton, Sprecber & Bell, G. B. Van Voort, and tbe Norfolk Printing Company. Tbe property was taken under tbe writ of replevin and on execution of an undertaking as prescribed by law was delivered to tbe plaintiffs. Issues were joined, a jury was waived, and as a result of a trial to tbe court judgment was entered for one of tbe defendants, tbe firm of Norton, Sprecber & Bell. Tbe judgment and tbe interest of said partnership in the replevin undertaking were assigned to tbe defendants in error herein, who instituted tbe present action on tbe undertaking to recover of tbe sureties tbe value of tbe property, tbe damages and costs, which, by tbe judgment in the replevin action and subsequent proceedings, it was alleged bad become due. Tbe defend [115] ants in error were successful in tlie suit, and for the sureties on the undertaking the present error proceeding has been prosecuted to this court. • It will doubtless be borne in mind that in the replevin action there were three defendants and in the present suit there were involved the rights of but the one, the firm of Norton, Sprecher & Bell, by its assignees. It was insisted in the trial court, and it is urged here for the plaintiffs in error, that inasmuch as the bond was given in favor of three obligees they should all have been parties to this suit, and as there was but one, or the assignees of one, there Avas a fatal defect of parties. The obligation of the undertaking Avas as follows: “Now, therefore, we, Herman Gerecke, Charles Eble, and C. P. A. Marquardt, do undertake to the said Norton, Sprecher & Bell, G. B. Yan Yoort, and the Norfolk Printing Company, defendants in said action, in the penal sum of $3,550, that the said A. P. Pilger, P. SchAvenk, and T. H. Egbert, plaintiffs, shall duly prosecute the action and pay all- costs and damages which may be awarded against them and shall return said property to the defendants in case a judgment for the return thereof is rendered against them.” The journal entry of the finding and judgment in the replevin action was in the following terms: “And now on this 21st day of March, A. D. 1894, it still being of the regular March, 1894, term of the district court in and for Madison county, Nebraska, this cause came on for hearing to the court, a jury having been waived, and the cause was accordingly submitted to the court on the petition, the answer, and the evidence, and, after hearing the evidence and the arguments of counsel, the cause was submitted to the court, on - consideration whereof the court finds that at the commencement of this action the defendants Norton, Sprecher & Bell -were the owners and entitled to the possession of the following goods and chattels described in the petition and in the Avrit of replevin, to-wit: * * * It is therefore considered by the court that the defendant have a return of the prop [116] erty taken on said writ of replevin and Ms damages, assessed at one thousand dollars ($1,000), or, in case a return of said property cannot be had, that he recover of said plaintiff the value thereof, assessed at fifteen hundred dollars ($1500), and interest thereon from this date, and costs of suit, taxed at $80.25.” The nature of the suit in which an undertaking is given, and the relief which may be afforded to the party or parties for whose benefit or security such bond is required, must determine the liabilities of the signers whether, relative to the obligees, the liabilities of the sureties are joint or may be several. In an action of replevin in which there are two or more defendants each may recover a part of the property, or one may be adjudged the owner and entitled to the possession of all the property, and to have a return of it, or to recover its value, as was the result in the replevin suit on the undertaking and the judgment on which the present action was predicated. It is also true that all the parties to a case in replevin' are bound by the adjudication of the rights involved and put in issue therein. It seems the correct conclusion that the' sureties of a replevin undertaking are liable to the party or parties to whom the final determination of the issue may accord a recovery, and under the prescription of section 29 of the Code of Civil Procedure, that “Every action must be prosecuted in the name of the real party in interest,” the action on the undertaking must be by the party who, by the judgment in replevin, is awarded a recovery, and we must further conclude that as Norton, Sprecher & Bell recovered the judgment in the replevin cause and for the entire property in controversy, this action, to enforce their rights thereby acquired without a joinder of the other parties obligees to the undertaking who were awarded nothing and whose rights in the property involved in the writ were determined by such judgment, was entirely proper and correct. The judgment of the district court is Affirmed.