March v. Barnet

HALL, J.

This is an appeal by plaintiff from an order of the trial court quashing and recalling an execution and ordering the entry of satisfaction of the judgment that had been rendered in favor of plaintiff.

This action was brought by William F. March, and on his death Alvaretta L. March, as administratrix of his estate, was substituted as plaintiff.

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In the complaint it is alleged in substance that theretofore an action had been brought by one Button against said Jacob Steen, as maker of a certain promissory note and said William F. March as indorser thereof; that an attachment had been issued and property of Steen levied upon; that to secure the release of said property said S. Barnet and one Bowman entered into an undertaking whereby they undertook to pay any judgment that might be rendered against Steen, and thereupon the attachment was released. Subsequently in said action judgment was recovered against Steen, as maker, and March, as indorser, for the sum of $625.97. Thereupon Bar-net paid said judgment, and took an assignment thereof from Button. Subsequently Barnet assigned said judgment to Isaac Blum, who shortly after assigned it to Joseph Blum, having first taken out execution and'placed the same in the hands of the sheriff, with instructions to seize and sell the interest of March in the schooner Ingalls, which, under the further directions of Joseph Blum, the sheriff did, selling the said interest of March to Joseph Blum for seven hundred and seventy dollars. (Said interest was alleged to be of the value of fourteen hundred dollars, but was found by the court to be of the value of one thousand dollars.) Before making the sale the sheriff demanded an indemnifying bond, which was given by the Blums and I. H. Jacobs. Joseph Blum, on the day of the sale, transferred his purchase to I. H. Jacobs, who at the beginning of the suit still held the same. Of the amount realized on the sale $596 was credited on the execution, the balance being applied to costs of sale, etc.

Each of the defendants at said sale and at the time of said assignment of said judgment had notice of the relation that Barnet bore to said judgment, and knew that he was a surety on said undertaking for the release of the attachment on Steen’s property; that' said transfers from Barnet to Isaac Blum, from Isaac Blum to Joseph Blum, and from Joseph Blum to I. H. Jacobs, were made with the purpose on the part of each of the parties thereto to have the said property of plaintiff seized under said execution and sold to reimburse Barnet for the amount he had paid on the judgment against Steen; that Steen instigated and aided and abetted the other defendants in said matters, and that all the other defendants