Friedman v. Adler

The opinion of the Court was delivered by Manning, J. Adler & Levy had obtained a money judgment against one Jacob, the execution of which was arrested by an injunction, Friedman being surety on the bond. The injunction was dissolved with damages against the principal and Friedman the surety in solido. After the lapse of the delay for appealing, execution issued against Friedman, under which Ms stock of goods (he was a shopkeeper in St. Charles) was seized, was held by the sheriff three weeks, and was then released. Friedman now sues to recover ten thousand dollars as damages for the illegal seizure, and after setting forth the injuries caused by this process, avers that he was not a party to the injunction suit, and never appeared therein, and was not served with any citation or other notice in those proceedings until the notice of actual seizure under the fi. fa. He was not served with notice of judgment. The question is thus squarely presented, is the surety to an injunction bond entitled to notice of tbe judgment of dissolution with damages, when the injunction has arrested the execution of a money judgment. The surety on an injunction bond is considered a plaintiff in the suit. Fifty years ago the facility with which injunctions were obtained under our Code of Practice had already become a fruitful source of abuse, to prevent the continued recurrence of which the Statutes of 1831 and 1833 attached to the suretyship of such bonds consequences more enlarged and more stringent than had hitherto attended any act of suretysMp. And these provisions were designed to deter persons from assisting [385] parties who had been judicially condemned, in evading or delaying the course of justice in cases wherein they were not entitled to relief. The surety was so completely identified with the injoining debtor as to become his co-plaintiff ipso facto by the mere act of suretyship — a soli-dary judgment was expressly authorized against them in the pending-suit if the injunction were dissolved — and the solidarity of obligation was crowned by transferring the surety to the position of a principal in this, that he was deprived of the plea of discussion. Code Prac. art. 304j Denton vs. Irwin, 5 A. 21. In construing these anomalous and rigorous requirements the courts have lent their hearty aid to the interpretation that would best effectuate the intention of the Legislature, and in furtherance of it have held that the surety was not merely a nominal party to the injunction suit, but such a real actual party that he is entitled to be cited on an appeal when it is by petition, Gibson vs. Selby, 3 A. 318; and when the appeal is by motion in open court, that he is embraced equally with his prineijial. Mitchell vs. Say, 4 A. 514. And where judgment was prayed against the wrong person as surety, the court gave judgment against him who was really surety. Union Bank vs. Smith, 3 A. 147. So where the verdict of the jury was against the principal in the injunction bond alone and the judgment was against him and the surety also, it was maintained, Mason vs. Poulallier, 10 A. 418; and the surety may be condemned on the trial of a rule to dissolve as well as on the merits, Betts vs. Mougin, 15 A. 52; and he is so perfectly and irrevocably bound by the petition, affidavit, order of injunction, etc., that they cure the omission of any description of the proceedings in the bond. Green vs. Huey, 23 A. 704. We need not say more of Verges vs. Gonzales, 33 A. 410, than that it was not a case where the execution of a money judgment was arrested. It is manifest from this catena of decisions that the legal presence of the surety in court is not a mere fiction of law, nor is it correct to say that he is only constructively before the court, since the law proprio vigore makes him a party, not nominally as is a sheriff in an injunction, but really and actually, stamped ineffaceably with all the attributes, qrialities, rights, and liabilities that appertain to and inhere in a party as completely as if his name had been inserted in the petition and had appeared at every subsequent stage of the suit. He is transfixed by the spear of the law and is empaled upon the suit, in order 'that the party injured by his aid may their and there obtain redress'fr'om him. If in an appeal by motion he is embraced just as is his principal, and in an appeal by petition he is entitled to service when his principal [386] is thus entitled, he is likewise entitled to notice of judgment only -when his principal is, and therefore when as in this case the defendant appeared and defended the suit, and is thus not entitled to notice of judgment, the surety has no cause of complaint when the execution issued upon the judgment of dissolution and for damages against him, after the expiry of the delay for an appeal, without notice to him of the judgment. It will he observed throughout that we are considering and deciding alone the case where the judgment, the execution of which is arrested, is a judgment for the payment of money. Tf the plaintiff was endangered by the seizure of his property under the fi. fa. the injury resulted from his own failure to fulfill the obligation into which he had entered for the payment of such damages as may have been sustained by the injoined creditor through his ownership. Judgment affirmed.