Heney v. Alpers

By the COURT. The bond in suit was given for the release of property attached. It was not given under the code, for the redelivery of the property or the payment of the value thereof, but was an undertaking “that in case the plaintiff recover judgment in said action, defendant will on demand pay to plaintiff the amount of whatever judgment may be recovered in said action.” The complaint in this action alleged the commencement of the former action, the seizure under attachment, the giving of the bond, the subsequent recovery of the judgment, a demand upon the defendant therein that he pay the judgment, his refusal, and that the same is unpaid. The defendants demurred to the complaint. We see no error in the order of the court overruling the demurrer. The only issue of fact presented by the answer is as to the. recovery of the judgment. The court found that on the 31st of July, 1878, judgment was recovered in the former action by plaintiffs against the defendants therein for eleven hundred and twenty-five dollars and twenty cents, and rendered judgment for plaintiffs herein for thirteen hundred and forty-four dollars and eighteen cents. We see no merit in any of the points presented by appellants, but are of the opinion that the appeal was taken for delay.

The judgment is therefore affirmed with twenty per cent damages.