Scott v. McDonald

Elliott, J. Charles Boose sued out an attachment against the steamboat Antelope, under article 37 of the code, to enforce a lien on said boat for work done and materials furnished in fitting her out. After the boat was seized under said attachment, James McDonald, the appellee, gave a written undertaking, under section 661, payable to said Roose, to [34] the effect that he would perforin the judgment of the court in*said cause; whereupon the attachment was discharged and restitution made of the boat, and, by order of the court, McDonald was substituted as defendant instead of the boat. After these proceedings were had, and the attachment discharged, Scott and Brindley., the appellants, filed a complaint and affidavit, setting up a claim against the boat, and claiming to be made parties plaintiff in said cause with said Boose, and to enforce their claim against McDonald, under his undertaking. The court, on the motion of McDonald, ordered such claim to be taken from the files of the case' of Roose v. McDonald, and ScottandBrindleythereuponrefnsing to prosecute the same in any other manner than as a claim •under the suit of Roose v. McDonald, as they had no cause •of action against McDonald otherwise, the court dismissed it for want of prosecution. The only question presented in the case is, Does the statute authorize a party, in such case, having a claim and lien on a boat attached at the suit of another, to file such claim and join in such suit as a plaintiff, after the filing of the undertaking in the original suit, the discharge of the attachment and restitution of the boat? We are of opinion that this question must be determined in the negative. It is true that section 659, p. 303, authorized all, or any, of the persons having demands which are liens on the boat, to join in the complaint against such boat, either at the commencement of the action, or at any time afterwards, before judgment, upon filing the requisite^-complaint and affidavit. But -section 661 provides, that “if .the defendant or master, owner or consignee, shall, before final judgment, give a written undertaking, payable to the plaintiff, with surety, to be approved by the clerk or sheriff^ to the effect that the defendant will perform the judgment of the court, the attachment shfffi be discharged, and restitution made of the boat or vessel.” It has been repeatedly held that when such undertaking is filed, the action thereafter proceeds against the [35] person so appearing and. making himself a party to the proceedings and procuring the release of the boat, and final judgment is rendered against him, in personam,instead of the boat. Jones v. Gresham, 6 Blackf. 291; Brayton v. Freese, 1 Ind. 121; Lane v. Leet, 2 Ind. 535; Kuntz v. Bright, 12 Ind. 313. <7.1L Stotsenburg and T. M. Brown, for appellants. J. E. McDonald, A. L. JRoache and D. Sheeics, for appellee. As long as the proceedings continue in ram, against the boat, persons having claims against it may file the same and become parties, but when the undertaking is filed and the attachment discharged, the action ceases to be one against the boat, and becomes a personal one against the party who, by his undertaking under the statute, procures the discharge of the attachment, and makes himself a party defendant, in the stead of the boat. His undertaking is given to the plaintiffs in the action, i. e., todhose who have filed their claims and made themselves parties before 'the undertaking is filed and the boat released, and binds the party so appearing to perform the judgment of the court upon such claims. "But we do not think that a fair or just construction of the statute can hold the party executing the undertaking responsible for all claims that may be filed against the boat, at anytime thereafter, before final judgment. Such a construction of the statute would render it very hazardous for any one, and especially the surety, to execute such an undertaking, as he might thereby be made liable for claims to an indefinite amount, of which he had no knowledge at the time of executing the undertaking. The judgment is affirmed, with costs.