McCargar v. Moore

BEAN, J. Plaintiffs move to dismiss this appeal for the reason that the judgment appealed from was rendered by consent. They commenced an action against defendant L. M. Moore, doing business as L. M. Moore & Co., for the collection of $581.15. An attachment was issued and levied upon certain property, whereupon the defendant executed a bond for its release under Section 311, L. O. L., with the Illinois Surety Company as surety thereon. Two other actions were instituted by the same plaintiffs against [684] the same defendant. The aggregate amount claimed in the three actions is stated to be about $1,300. On September 14, 1915, a stipulation was entered into between the plaintiffs and defendant Moore to settle all three actions for the sum of $860, conditioned that if the same were not paid within a certain time, judgment should be entered for the agreed amount. No liquidation having been made, on December 16, 1915, upon notice to Moore’s counsel, judgment was entered in the first action against defendant and also against his surety on the bond for the discharge of the attachment, for the sum of $581.15, the total amount claimed in the action with interest and costs: See L. O. L., § 308. The record does not disclose that any notice was given to the Surety Company. Upon the issuance of an execution the Surety Company applied to the Circuit Court for a hearing in the matter for the reasons: (1) That it had no notice or knowledge of the proposed entry of the judgment, and was not a party to the stipulation; (2) that the action in which the bond for the discharge of the attached property was filed was settled for approximately $320; and (3), that a portion of the attached property was not released to the defendant Moore. This application being denied, the Surety Company appeals. 1-4. The stipulation for a settlement of the amount claimed in the three actions does not specify what sum should be recovered in the particular action wherein the bond for the release was filed. The amount of the liability of the Surety Company on the undertaking as surety for the defendant in the attachment does not appear to have been determined, or attempted to be determined, by the stipulation. It was fixed by the ° bond, and could not be extended to other actions by a subsequent agreement of Moore, the principal, or by [685] action of the court as to the other two actions: 6 C. J., p. 340, § 703. A surety on such an undertaking is not estopped by the judgment to show that the principal never released the property proposed to be discharged: Cortelyou v. Maben, 40 Neb. 512 (59 N. W. 94). It is stated in 6 C. J., Section 740, page 350, that: “Statutes authorizing summary remedies on forthcoming, delivery or dissolution bonds are to be strictly construed, and are available only where the bond is such as the statute contemplates; and one who seeks to enforce the liability of the obligors in this manner must comply, at least substantially, with the requirements of the statute in respect to all things which must be done in order to make the statutory remedy available.” It is indicated that the summary remedy provided by Section 308, L. O. L., does not prohibit nor impair the effect of any legal defense: 6 C. J., p. 353, § 753; Dunlap v. Clements, 18 Ala. 778; Hayman v. Hallam, 79 Ky. 389. It is well settled that a party who consents that a judgment or decree be rendered against him cannot change his mind and appeal from the judgment: Plinsky v. Nolan, 65 Or. 402 (133 Pac. 71); East Side Mill & Lbr. Co. v. Feldman, 77 Or. 644 (152 Pac. 266); Lengele v. Moore, 77 Or. 647 (152 Pac. 267). For a litigant to consent that a judgment be rendered against another party, as in the case at bar, is quite a different thing. If the surety by his undertaking consents that a judgment be rendered against him, in the absence of fraud or collusion, it may be entered without notice: Andres v. Schlueter, 140 Iowa, 389, 393 (118 N. W. 429). The question raised is so closely allied to the case upon the merits that it should not be finally passed upon without a full hearing. The motion to dismiss will therefore be denied, with the [686] privilege of renewing the same and submitting briefs and arguments at the final hearing of the cause. Motion Denied. Eakin, J., took no part in the consideration of this case. Argued March 8, appeal dismissed March 26, 1918.