Metrovich v. Jovovich

Morrison, C. J. : The plaintiff brought an action in the District Court of the Twelfth Judicial District, against one Marovich, for the recovery of the sum of seven hundred and seventy-five dollars, alleged to be due on a contract for the direct payment of money, and procured a writ of attachment to be issued in said action. The writ was duly levied on certain property of the defendant in the action, and to procure the discharge of the attached property, the defendants in this action executed and delivered an undertaking, conditioned as follows: “Now, therefore, we, the undersigned, residents, etc., in con- , sideration of the release of the premises, and in consideration of the release from the attachment of the property attached, as above mentioned, and the discharge of said attachment, do hereby jointly and severally undertake in the said sum of one thousand dollars, and promise that in case plaintiff recovers judgment in the action, defendant will, upon demand, redeliver such attached property so released to the [343]proper officer, to be applied to the payment of the judgment, and that in default thereof we will, on demand, pay to plaintiff the full value of the property released, not exceeding’ the sum of one thousand dollars.”

On the execution of the foregoing undertaking, the attached property was released from the levy, and on the fifth day of December, 1876, the plaintiff recovered a judgment against Marovich, for the sum of seven hundred and fifty-nine dollars and ten cents, and the further sum of two hundred and nine dollars and ten cents costs, upon which judgment an execution was issued on the fifteenth day of March, 1877. On the twentieth day of March, 1877, the officer having the writ of execution in his possession, demanded of Marovich a redelivery of the property attached, but such redelivery was refused. Demand of the property was also made by the officer, of the defendants in this action. The evidence shows that a portion of the property attached consisted of fruit, and was therefore perishable in its nature; that some of the property had been sold by Marovich, while the action was pending against him, and that other property of a similar nature had been purchased by him. It also appears in the case, that some of the attached property was still in the store of Marovich, at the time the officer made demand of him for the redelivery of the property, and that it was levied upon and sold by the Sheriff. The finding of the Court below on this subject was as follows: “That no part of the said property was returned or delivered to the said Sheriff, by the said Marovich or either of the defendants, but the said Sheriff, under said writ, did then and there levy upon and take certain personal property found in the possession of said John Marovich, at the same place where the property taken under said attachment was situated at the time of the release from attachment, and a portion of which personal property constituted and was a portion of the property originally seized under the writ of attachment, and released to said Marovich upon the giving of the bond herein sued upon, and said Sheriff did afterwards sell, under said writ, all the property seized under said execution, and said Sheriff after-wards returned said execution unsatisfied, but with a credit indorsed thereon of two hundred and eighty-four dollars and