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Wright, Executrix, et al. v. Manns et al.

jurisdiction of the court below, and without the boundaries of the State of Indiana, and that neither he nor any part of said property had been within the limits of Harrison county since March 1st, J 880. Wherefore, etc.

It is claimed on behalf of appellants that this paragraph of complaint was clearly bad on their demurrer thereto, for the want of averments therein that after appellees had procured the correction of their personal judgment against the defendant Urbanski by the entry of a nunc yro tunc order for the sale of the attached property, they had caused a special execution to be issued thereon to the sheriff of Harrison county, commanding him to sell such attached property, or so much thereof as might be necessary, to pay their said judgment; and that the sheriff of such county, by virtue of such special execution or otherwise, had demanded of Urbanski or his sureties in such undertaking, before the commencement of this suit, either that they deliver to such sheriff .said attached property or that, failing so to do, they pay to such sheriff the full appraised value of such attached property to the extent of appellees' aforesaid judgment against said Urbanski.

We are of opinion that these objections of appellants to the sufficiency of the facts stated in the second paragraph of appellees' complaint herein are well taken, and that, for the want of such averments as those stated, the demurrer to such paragraph of complaint ought to have been sustained. The undertaking sued upon in such second paragraph was executed under, and in conformity with, the provisions of section 168 of the civil code of 1852, which section was literally reenacted as section 209 of "An act concerning proceedings in civil cases," approved April 7th, 1881, and is section 924, R. S. 1881.

In such section it is provided as follows: "The defendant •or other person having possession of property attached, may have the same or any part thereof delivered to him, by exe■cuting and delivering to the sheriff a written undertaking, Wright, Executrix, el ai. r. Manns el al.

with surety to be approved by the sheriff, payable to the plaintiff, to the effect that such property shall be properly kept and taken care of, and shall be delivered to the sheriff on demand, or so much thereof as may be required to be sold on execution to satisfy any judgment which may be recovered against him in the action, or that he will pay the appraised value of the property, not exceeding the amount of the judgment and costs."

In Dunn v. Crocker, 22 Ind. 324, it was held by this court, in construing the provisions of the section quoted, that the undertaking therein provided for is "in the nature of a delivery bond, which does not release the property from the attachment, nor from an order of sale in the judgment." By the execution of such an undertaking the attached property is not withdrawn from the custody of the law, but the proper keeping and care of such property is thereby removed from the sheriff and committed to the claimant, until such time as the sheriff may lawfully demand the delivery of the property back to him to be sold on the execution issued on the judgment for the sale of the attached property. Lusk v. Ratmay, 3 Munf. 417; Doremus v. Walker, 8 Ala. 194; Hagan v. Lucas, 10 Peters, 400.

From the provisions of the section quoted, and the terms of the undertaking declared upon in the second paragraph of the complaint herein, it would seem to be clear that until judgment had been rendered in appellees' suit against Urbanski for the sale of the property attached therein, and until a special execution issued on such judgment had come into the hands of the sheriff of Harrison county, commanding him to sell such attached property, such sheriff would not be lawfully authorized to demand of Urbanski and his sureties in such undertaking either the delivery back to him of such property, or the payment of its appraised value, not exceeding the amount of such judgment and costs. This was decided, substantially, by this court in Oass v. William, Wright, Executrix, el al. v. Manns et at.

46 Ind. 253, and in Lowry v. McQee, 75 Ind. 508. See, also, Sannes v. Ross, 105 Ind. 558.

Under all the canons of good pleading, it would seem to be equally clear that a complaint upon such an undertaking, which fails to allege, inter alia, that after the rendition of judgment for the sale of the attached property, a special execution had been duly issued on such judgment to the ■sheriff of the proper county commanding him to sell such property, or so much thereof as might be necessary to pay such judgment, and that such sheriff, by virtue of such execution, had demanded of the obligors in such undertaking the delivery to him of such attached property, or the payment of its appraised value not exceeding the amount of •such judgment and costs, would be bad on demurrer thereto for the want of sufficient facts. The court erred, we think, in overruling the demurrer to the second paragraph of appellees' complaint.

Appellants' counsel also insist that the trial court-erred in sustaining the demurrer to the second paragraph of their answer to the second paragraph of appellees' complaint herein. In this paragraph of answer, appellants admitted that Samuel J. Wright, then in full life but since deceased, and appellant Bowling executed the written undertaking mentioned in the attachment proceedings by appellees herein against Isaac Urbanski, as sureties for the delivery to Urbanski of the attached property mentioned in the second paragraph of eomplaint herein, but they averred that, prior to the execution of such undertaking, in consideration that said Samuel J. Wright and Lewis W. Bowling would execute such undertaking as his sureties therein, Isaac Urbanski endorsed And transferred to said Samuel J. Wright, as an indemnity to such sureties against any loss they might sustain by reason of their suretyship, a negotiable promissory note held by liim on one David Urbanski, a good and solvent person, for the sum of $500, which was more than sufficient to fully indemnify them against any loss they might sustain by reaWright, Executrix* et al. v. Manas ei al.

son of their suretyship, which endorsement of such note was made before its maturity; that such other and further proceedings were afterwards had by appellees, as set forth in the second paragraph of their complaint herein, that they recovered the judgment mentioned therein, against Isaac Urbanski, being a personal judgment only, which judgment was duly read in open court, and approved and sigued by the court, and appellees' attorneys were present within the bar when such judgment was read and approved by the court; that afterwards, such sureties examined the record in such proceeding and were advised by counsel that no action could be enforced against t-hem upon their written undertaking on the judgment so rendered; that after retaining such note of David Urbanski for nearly one year from the date of said judgment, and no proceedings having been taken against such sureties for the enforcement of said judgment, on demand of Isaac Urbanski, and on the faith of the personal judgment taken against said Isaac, as the same appeared of record on the order-book of the Harrison Circuit Court, thorn good faith surrendered to Isaac Urbanski said negotiable note, which they held from him on David Urbanski as aforesaid; that afterwards, as averred in the second paragraph of appellees' complaint herein, by notice and motion in the Harrison Circuit Court, appellees procured such personal judgment to be amended by the entry of a nunc pro tune. order for the sale of such attached property; and appellants said that, by reason of appellees' failure to have their judgment against Isaac Urbanski so entered in the first instance as to order the sale of such attached property, the sureties in such undertaking were induced to surrender their said indemnity, and appellees ought not to have judgment against appellants on such second paragraph of complaint.

We are of opinion, that if the facts stated in this paragraph of answer be true—and as they are well pleaded their truth is admitted as the case is here presented—they constitute a Wright, Executrix, el al. v. Manns et aL

full and complete bar both in law and equity to the cause of action set forth by appellees in the second paragraph of thei r complaint herein. It is settled by our decisions that, wheiv ancillary proceedings in attachment have been instituted in support of a pending cause of action, and personal property of the defendant h,as been seized by the sheriff under sucli proceedings, if the trial of such cause result in a personal judgment only against such defendant, without any special judgment or order of the court for the sale of such attached property, the taking of such personal judgment only, of itself, is an abandonment by the plaintiff of his attachment proceedings, and an undertaking or bond for the delivery of such attached property falls with the other proceedings and ceases to have any legal effect or binding force. Gass v. Williams, supra; Lowry v. McGee, supra; Smith v. Scott, 86 Ind. 346.

In the case last cited, which was a suit upon an undertaking similar to the one declared upon by appellees in the second paragraph of their complaint herein, it was held by this court that the rendition of a personal judgment only against the defendant in an attachment suit is equivalent to a dismissal of the proceedings in attachment; and that, unless judgment be rendered for the sale of the attached.property in the action wherein such undertaking was executed, there is no liability on such undertaking. "So it was held, upon full consideration, in Gass v. Williams, 46 Ind. 253."

Of course, if the court has rendered the proper judgment for the sale of the attached property, but, through the misprision of the clerk, such judgment has not been entered, the record may be amended by a nunc pro tunc order and entry, if there be anything to amend by, and if such nunc pro tunc judgment or order will not injuriously affect the rights of third persons. In Urbanski v. Manns, 87 Ind. 585, the nunc pro tunc judgment and order for the sale of the attached property mentioned in the second paragraph of appellees'

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