State ex rel. Meeker v. McGlothlin

Seevers, J. i attach-u-m-yhond : ' nytsuper-lecl sedeas bond. — I. It is insisted that the supersedeas bond declared on in the second count of the petition superseded or rendered the delivery bond null and void, and that no recovery can be had thereon. No authority is cited, nor is the proposition largely discussed by counsep "We therefore deem it sufficient to say that, in our opinion, the delivery bond remains in full force until the conditions therein stated are performed. action on. II. The bond just mentioned was executed under the provisions of section 2994 of the Code, and section 2995 pro-that “such bond shall be a part of the rec-01^ and, if judgment go against the defendant, the same shall be entered against him and sureties.” Because no such judgment was rendered against the defendant in the bastardy proceeding, it is insisted that none can be now, the argument being that the remedy on the bond is statutory and exclusive. In support of this proposition, Cole v. The City of Muscatine, 14 Iowa, 296, is cited. In that case it was held that the plaintiff had no remedy at common law, and therefore he must pursue the remedy provided by statute. This is obvious. In the case at bar we think the plaintiff could have maintained an action on the bond at common law, if none had been provided by statute. The latter, therefore, is merely an additional remedy. The bond, it is true, is statutory, but the release of the lien of the attachment constituted a sufficient consideration, and no reason can be given why an action at common law cannot be maintained thereon, unless the statute is both mandatory and exclusive, which is claimed. If this construction is adopted, then the same judgment which is entered against the principal must be entered against the surety, although the latter might not be liable to the same extent as the principal. At least, a strict construction would require such a judgment. But, in our opinion, whether that is true or not, the plaintiff is confined to the statutory remedy. As bearing on this question see Sheppard & Morgan v. Collins, 12 Iowa, 570; Moorman & Greene v. [315] Collier, 32 Id., 138; Risdon v. Shank, 37 Id., 82; City of Dubuque v. Ill. C. R. R., 39 Id., 56; City of Burlington v. B. & M. R. R., 41 Id., 134. 3. surety * against: ex-property of principal. III. Section 3039 of the Code provides: “When a judgment is against a principal and his surety, the officer having the collection thereof shall exhaust the property the principal before proceeding to sell that of the surety;” and it is insisted that this action cannot maintained, because it is not stated in the petition that the property of the principal debtor has been exhausted. But the statute only applies when judgment has been obtained against both principal and surety, and not then, unless the order of liability is stated in the judgment. Code, § 3042. The plaintiff has the right to a judgment against the surety before the statute as to the order of liabih ity can be invoked by him. 4. attach- , eryauá supersedeas Ronds.- naRiities- ■ IV. The court held that the plaintiff was entitled to judgment to the extent of the penal sum of both bonds. That the defendant is liable on both bonds we think is true. He is undoubtedly liable on the delivery , ^ bond. The extent of such liability will be hereafter stated. Now, being so liable, suppose the supersedeas bond had been signed by some other person, and defendant had paid the amount of the delivery bond, and there was a portion of the judgment unsatisfied, we apprehend that the person who signed the supersedeas bond would be liable to the extent of the bond, provided that amount of the judgment remained was satisfied. The fact that both bonds are signed by the same person cannot affect the extent of his liability. 5. SAME. V. It is insisted that this judgment is for too much; and we think in this respect the court erred. At the time this cause was tried, there was only due on the judgment in the bastardy proceeding the sum of Í . to, and a small amount of interest, together with certain costs which were unpaid, the whole of which amounts to much less [316] than the amount for which judgment was rendered. Before the plaintiff could recover of the defendant as surety, it must appear that the principal debtor was in default. Now the latter was in default only to the extent of the judgment which was due and payable according to its terms. As the judgment against the defendant was much greater than this, the court in this respect erred. Bevebsed.