Thomas v. Layer

JAMES, J.

Defendants appeal from a judgment entered against them. The action was brought upon an undertaking given by Wilson as principal and Layer and Schenck as sureties to indemnify the plaintiff, who was a constable, for a liability which might accrue against him. Wilson was plaintiff in a certain civil action, in which action he required the plaintiff as constable to attach an automobile, which automobile was later claimed by a third party. Upon the demand of the third party the constable was about, to release the property, when the undertaking was given upon which this action was brought. Because of his retention of the property after the third party’s demand, the constable was subjected to a suit and judgment was recovered therein against him by one Bunnell, who was the third party referred to. There was evidence showing that upon this action of Bunnell’s being brought against the constable, the latter’s attorney called upon the appellants to assist in the defense of that action, and it appears that two counsel were employed by one or the other of the sureties (appellants here) and

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that such counsel did appear at the trial in defense of the action. Appellant Layer, one of the sureties, makes the point here that he was" not permitted to take part in the ‘defense of that

action;

but there was ample evidence before the trial court to entitle the inference to be drawn that he was not only well informed of all of the proceedings in that case, but that the counsel, other than counsel for the constable, did represent the sureties and both of them with authority, or at least with their consent. After the judgment was rendered in favor of Bunnell against the plaintiff here, execution was taken out and money belonging to the plaintiff was attached; whereupon notice of appeal was given and an undertaking prepared and filed for the purpose of staying execution. On this undertaking Layer signed as one of the sureties, but later refused to justify, and the constable by his own means procured a stay bond and caused the same to be filed. While the appeal was pending in this court and undecided, the plaintiff brought this action to enforce the liability assumed by Wilson and his sureties, the appellants here. Before the action was tried, plaintiff dismissed his appeal in the Bunnell case in this court and satisfied the judgment below.