March v. Barnet
Before: Fleet
Synopsis
Suretyship—Bond fob Release of Attachment—Payment of Judgment— Principal and Indorsee—Limited Subrogation.—In an action upon a promissory note, where judgment was rendered against the principal, and an indorser as such, and a bond for release of attachment against the property of the principal had been given, at his “ request and for his benefit, conditioned solely that if judgment should be recovered against him, the sureties would on demand pay the same, though each of the sureties became a party to the judgment against the principal, and was bound to pay it upon his default, yet there was no privity between him and the indorser, and as between them he remained a stranger to the judgment. Upon payment of the judgment hy one of the sureties, he simply performs the obligation of the principal, and can only look for reimbursement to him, and is entitled to be subrogated to the rights of the judgment creditors only as against the principal; and he has no more right to enforce the judgment against the indorser than the principal would have, if he had paid the judgment.
Ip.—Seizure of Property of Indorser—Trespass—Damages.—The seizure and sale of the property of the indorser by the surety who paid the judgment, or his assignee, in pretended satisfaction of the judgment, fpr the reimbursement of the surety, was an unlawful taking of such property, and constitutes a naked trespass in those participating therein, for which they are jointly and severally liable to the indorser in the full value of the property taken, with interest from the date of the taking.
Id.—Law of Case—Right of Contribution — Recovery Against Trespassers.—A decision rendered upon a former appeal hy the principal debtor, as to the right of contribution of the indorser against him, upon seizure and sale of his property upon execution, to which seizure the principal debtor was not a party, is not the law of the case, to preclude a recovery of damages against the parties who-had wrongfully seized the property, whose rights were not considered or passed upon on the former appeal.
Id.—Waiver of Misjoinder.—Where the parties against whom damages are sought for the trespass have not pleaded a misjoinder of causes of action against them, and against the principal debtor for contribution, and merely insist that there is no right of action against them, the objection to the misjoinder of causes is waived, and a recovery may be had against them for the trespass.
VAN FLEET, J. When this cause was in Department an opinion was rendered affirming the judgment, but subsequently the judgment of the Department was set aside and the cause ordered to a hearing in Bank.
The action is to recover for the alleged wrongful taking of certain personal property of the plaintiff. The material fact's, ae found hy the court, were these:
[421]• In October, 1890, 0. M. Button brought an action against Jacob Steen and John Boss and W. F. March, the plaintiff herein, on a promissory note made by said Steen payable to John Boss, or order, and by him indorsed to plaintiff March, who in turn, before maturity, indorsed the same to Button. A writ of attachment issued in said cause, which was levied upon the property of defendant Jacob Steen.
Thereupon S. Barnet and one G-. Bowman entered into an undertaking for the release of said attached property, as prescribed by section 540 of the Code of Civil Procedure, whereby they undertook and agreed to pay any judgment plaintiff in that action might obtain against the defendant Steen, whereupon the attachment was released.
Button obtained judgment in that action against Steen as maker of said note, and March as indorser thereof, for six hundred and twenty-five dollars and ninety-seven cents and costs, the suit having been dismissed as to defendant Boss; the findings upon which the judgment was based expressly disclosing the fact that Steen was the maker and March an indorser of the note.
On April 18, 1893, Barnet paid that judgment to Button and took an assignment of it. On May 17, 1893, defendant Bar-net assigned the judgment to defendant Isaac Blum, who on May 31, 1893, assigned it to Joseph Blum, having first taken out an execution and placed it in the hands of the sheriff of San Francisco, instructing him to seize and sell the interest of March in the schooner “Ingalls,” which, under the further direction of Joseph Blum, the sheriff proceeded to do, selling said property to said Joseph Blum on May 38, 1893, for seven hundred and seventy dollars, which interest was then and there of the value of one thousand dollars. Before making the sale the sheriff demanded an indemnifying bond, which was given by defendants Isaac Blum, Joseph Blum and J. H. Jacobs. Joseph Blum transferred his purchase to J. H. Jacobs on the day of the sale, and Jacobs at once took possession of the same, and held it at the commencement of the action. At all these times, from the payment of the Button judgment by Barnet until the sale and transfer of March’s interest in the schooner, each of the defendants S. Barnet, Isaac Blum, Joseph Blum,
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