Stauffer v. Garrison

Campbell, C. J., delivered the opinion of the court. The circuit court did wrong to sustain the objection made on the trial to the introduction of the bond sued on because of the non-joinder of some of the obligees as pláintiffs. There was no variance between the instrument sued on and that offered in evidence. It was correctly described in the declaration, but the suit was not rightly brought in the name of part of the obligees. It should have been in the name of all or their non-joinder accounted for on legal grounds. But as the defendant had not given written notice thereof with his plea, as required by § 1511 of the Code of 1880, the non-joinder of plaintiffs was not available to him. The court did right to permit an amendment by joining the parties omitted. The plea of the pendency of another action was fatally defective in not averring that it was a prior action and the demurrer to it should have been sustained, but it is clear that the declaration does not contain a cause of action entitling the plaintiffs to a recovery, for all the damages alleged to have been suffered are such as resulted from the institution of the suit and its prosecution and [71] defense, and none is. shown to have been sustained by the seizure of the goods by virtue of the writ of sequestration. The bond is a security only for “ all damages which may accrue from the wrongful seizure of the property to be seized by virtue of such process,” and not for counsel fees or other expenses incident to the defense of the suit, not being the legal and proximate result of the seizure of property by virtue of the writ. The suit is one thing, and the seizure of property under process in it is another, and the bond of the complainant is a security only for the wrongful seizure of property. The demurrer should have been extended to the declaration, and sustained, and the action dismissed, and as the result attained below is the same which this course would have produced the judgment is Affirmed.