
    (Greene County Court of Common Pleas.)
    CATHARINE WOOG v. THE PEOPLE’S BANK OF JAMESTOWN, OHIO.
    1. The summary proceeding against sureties upon an undertaking in replevin, provided in section 5820, Revised Statutes, (as amended O. L. Vol. 88, page 274) is valid.
    2. In such, proceeding it is not necessary that the defendant in replevin by a supplemental pleading set forth his cause of action upon the undertaking against the sureties. Service upon the sureties of a certified copy of a journal entry, reciting the fact of suretyship, the recovery of a judgment against the principal, the return of execution thereon unsatisfied, and directing that the sureties be notified to appear within ten days and show cause why judgment should not be rendered against them for the breach of the undertaking, is sufficient.
    3. If the sureties admit their liability upon the undertaking, or if they‘fail to appear . within the time limited, after due service of' the notice, having been made parties defendant in the action, judgment should be rendered against them for the amount of the recovery against the principal.
    4. If the sureties appear to defend against liability on the undertaking, they should be made parties defendant in the action and required to answer setting forth their defense. Issues of fact made by the reply to such answer should be submitted to a jury.
    5.-.If upon the trial the jury find against the sureties.and in favor of the defendant .,in replevin, it is not necessary that there be a finding of the amount due defend- . ant. A general verdict in favor of defendant and against the sureties is sufficient.
    
      6. A surety executed an undertaking in replevin in pursuance of an agreement with the plaintiff and the sheriff, whereby said plaintiff was to indemnify him’as such surety within three days, and the sheriff was to take possession of the property under the order of delivery, but in case said plaintiff failed to furnish indemnity as aforesaid upon notice thereof within five days, the sheriff was to return the property so taken to the defendant. The plaintiff having failed to furnish indemnity as agreed, the surety within five days notified the sheriff of such failure, and requested him to return the property taken to the defendant. This he not only failed to do, but delivered the property to the plaintiff.
    Held: That the surety was liable upon the undertaking,'it not appearing that the defendant in replevin had notice of such agreement.
    (Decided May Term, 1895.)
   SMITH, J.

This is a proceeding against R. E. Richardson,surety upon a replevin bond,under the last clause of section 5820, Revised Statutes, as amended. 88 O. L., 274, which provides “that after the rendition of a judgment in any cause in which any undertaking has been given in compliance with the provisions of this chapter, upon motion to the court, the sureties upon the undertaking shall be notified to appear in such court within ten days from the issuance of such service and show cause why. judgment should not be entered against them for the breach ot such undertaking, whereupon such sureties shall be made parties defendant in such action, and the same shall proceed as other civil actions.”

The defendant having recovered a judgment against the plaintiff, on motion, execution on said judgment having been returned unsatisfied, it was ordered that R. E. Richardson, surety upon the undertaking, be notified to appear and show cause why judgment should not be entered against him for the breach of such undertaking.

Said Richardson having been served with a copy of said order, appeared and set forth in writing the reasons why judgment should not be rendered against him, and why he shordd not be made a party defendant in this action. It appearing from said written statement that he had executed said undertaking, it was ordered that he be made a party defendant herein, and that he answer setting forth his defense against liability by reason of his suretyship. Said Richardson filed an answer and an amendment thereto, setting up several defenses, to some of which a general demurrer was sustained, and upon the remainder issue was taken by reply. Upon a trial to a jury upon the issues joined, at the conclusion of the testimony, a verdict was returned for defendant under the direction of the court. Said Richardson thereupon filed a motion for a new trial.

It is claimed that the action of the court in ordering Richardson to be made a party defendant, and to file an answer, was irregular and invalid; that said Richardson was entitled to a day in court, to have a pleading filed setting up a claim against him; that the defendant should have been required to file a cross-petition setting forth his cause of action on said bond.

The object of the amendment is to provide a summary remedy on the undertaking; the provision that the sureties be notified to appear in court and show cause why judgment should not be rendered against them for the breach of the undertaking, gives said sureties a day in court and an opportunity to set up, by way of defense, any matter not concluded by the judgment in replevin. Upon the first hearing Richardson was only made a party defendant, and ordered to file an answer, so that an issue might be made upon the grounds alleged by him as a defense against liability for a breach of the undertaking, and in order that upon the issue made a trial might be had by jury. The'statute contemplates a trial by jury upon issues of fact, the sureties having been made parties defendant in the action “the same shall proceed as other civil actions” Richardson not only had a day in court, but was permitted to file an answer setting up his defense, and issue was taken thereon by reply. He cannot complain that no cross-petition was filed against him, for he was in the first instance notified to appear and show cause why judgment should not be rendered against him for a breach of the undertaking, and why he should not be made a party defendant to this action.

He fully undertsood, when he filed his answer, that he was defending against any liability by reason of his execution of said undertaking in replevin.

Again, if a cross-petition must be filed, to which the surety is entitled to the usual time to file an answer to a cross-petition, the very object and purpose of the proceeding in providing a summary remedy against sureties would be defeated. The issues for hearing were those made by the answer and reply, the answer being by way of confession and avoidance of the claim which he was notified to defend against. The claim of the defendant herein was fully set forth in the journal entry, which was served upon said Richardson. After the verdict and judgment thereon in favor of the defendant, an entry was approved by the court reciting the fact that it appeared from the undertaking that said Richardson was the surety thereon; that there had been a breach thereof; that execution against his principal had been returned unsatisfied, and that he be notified to appear within ten days and show cause why the judgment rendered against his principal should not be rendered against him, and a certified copy thereof was served upon him.

The general rule is that a judgment binds only parties and those in privity with them. But it is the privity existing between the principal on a replevin bond and his sureties that lies at the foundation of this proceeding.

In Braiden v. Mercer, 44 Ohio St. 343, the court say: “Has it ever been doubted that the determination by the court in attachment proceedings, that the order was wrongfully obtained, concluded the sureties upon that question in an action on their undertaking? By an undertaking in replevin the sureties contract that their principal will duly prosecute the action and pay all costs and damages which maybe awarded against him. Nobody will claim that the award of damages on a replevin suit is not final against the sureties in an action against them on the undertaking. It has never been supposed that sureties on an injunction bond in an action against them could be heard to say that they were strangers to the injunction proceeding, and that the decision of the court, that the injunction ought not to have been granted, should be disregarded and the question again litigated.” See also Jayne’s ex’r v. Platt, 47 Ohio St. 262-271 et seq. on page 278. The case of State v. Jennings, 14 Ohio St. 78, where it was held that in an action against a constable and his sureties, the sureties might not only attack the judgment for fraud and collusion, but open up the inquiry on the merits, is distinguished. In this state, a summary remedy is provided against the surety of a sheriff or clerk of court who has been amerced for not performing certain duties, by making the surety a party to the judgment without notice. Revised Statutes, sec. 5599.

' Statutes providing for summary proceedings against sureties are in force in several states. Those which I have found do not even provide for notice to the sureties. They are based upon this principle of the jprivity, existing betweeen the principal and his sureties.

. In Iowa the statute provides that a judgment for money recovered against plaintiff in replevin shall go against sureties on the bond. In Hershler v. Reynolds, 22 Iowa, 152, the court held that under this statute the sureties by signing the bond consent and agree that any judgment adjudged against their principal may be rendered against them also. That during the pendency of the action in replevin they are treated as in court, and in the absence of exceptional circumstances, are not entitled to any other day.

In Michigan the provision of the Justices’s Act authorizing the circuit court on rendering judgment against the appellant to enter it on motion against the surety on appeal also, was held not unconstitutional in Chappee et al. v. Newberry, 5 Mich. 53. The court held that the bond being executed with reference to and in accordance with the statute, is to be treated in all respects as if the whole of the statute in reference to the appeal, the bond and mode of entering up judgment upon it, were recited at large therein, and in this view it becomes a direct and binding assent to and authority for the entry of the judgment in such manner.

In Wisconsin the statute provides that when a judgment is rendered against a party in an action in replevin, the judgment may be entered up as well against the principal as against the surety who has signed the undertaking for the return of the property. This statute was held not to be unconstitutional on the ground that it deprived sureties of notice of the judgment and of the right to trial by jury. Pratt v. Donavin, 10 Wisconsin, 320.

The surety was held to be a quasi party by signing the undertaking. Approved in Booth v. Ableman et al., 20 Wisconsin, 633,

The same provision is found in the statutes of Georgia,'where judgment may be taken against the sureties without notice. Craig v. Herring, 6 S. E. Rep. 283. So in Alabama. Rich v. Lowenthall, 13 Southern Rep. 220, 222.

Formerly forfeited recognizances were collected in New York upon execution without suit- People v. VanEps, 4 Wendell, 387.

The foregoing are cases holding statutes valid which do not provide for any notice to the surety.

The statute of this state provides for notice; this Richardson had; he filed an answer, issue was made by reply. Had the bank commenced an action upon the bond, the issues would have been precisely the same. In this state there is a provision for a summary remedy against a surety for costs where, after final judgment, the court ma3, on-motion after ten days’ notice, render judgment against the surety, his executors or administrators, for the unpaid costs adjudged against plaintiff. Revised Statutes, sec. 5344. The authorities are uniform in recognizing this principle of the privity existing between the principal and his sureties.

A judgment against the principal binds the surety, and he cannot be heard to claim in an action of replevin, that plaintiff nevertheless was the rightful owner of the properly, or that the sheriff never had possession of the property replevied. Kennedy v. Brown, 21 Kansas, 174; or that there was but one surety on the bond while the statute required two. Shaw et al. v. Tobias, 3 N. Y. 188, 190; Bigelow v. Comegys, 5 Ohio St. 256. Or that there are irregularities in the institution, or prosecution of the action in replevin, or technical defects in the replevin bond, or the want of an affidavit, or the non-return of the writ. Nichols v. Standish, 48 Conn. 321. Or that the amount of the bond was for a less sum than the value of the property as assessed by a jury. Rich v. Lowenthail, 13 Southern Rep. 220. Or that the formalities provided for by statute were not carried out; or that by agreement between the parties the undertaking was not to be used, and was not used to’ obtain possession of the property. Harrison v. Wilkin, 69 N. Y. 412.

A surety on a replevin bond is liable though the action is dismissed for want of jurisdiction. Biddinger et al. v. Pratt, 50 Ohio St. 719.

But it is claimed that Richardson was not a’ surety on said undertaking. Upon the trial he offered to prove that at the time he signed the undertaking it was agreed betweeen him, the sheriff and the plaintiff, that plaintiff should indemnify him as surety by a mortgage on certain real estate, and that said mortgage should be executed within the next three days thereafter; that it was further agreed that if at any time within the next five days after the sheriff had replevied the property, upon notice to him that the plaintiff had not indemnified him according to her agreement, said sheriff upon such notice should return the property replevied to the defendant; that pursuant to said agreement he executed the undertaking the day before the property was replevied without any appraisement thereof made at the time of said execution, and within five days after the property was replevied notified said sheriff that plaintiff had failed to indemnify him, as she had agreed to do, and requested him to-return said property to defendant. Said testimony was excluded from the jury, and by reason thereof it is claimed a new trial should be granted.

The plaintiff was the moving party. She had caused the order of delivery to be placed in the hands of the sheriff to be executed by him; any agreement betweeen plaintiff, the sheriff and Richardson, by which the undertaking of Richardson as surety was conditional, without the knowledge or consent of defendant, would certainly not bind the defendant. If Richardson trusted the plaintiff that she would indemnify him, and the sheriff in case she did not, that he would return the property, the failure of either or both to do as agreed could not bind defendant. The sheriff violated an agreement between himself and Richardson alone. He was the agent of plaintiff and Richardson in the matter. He did not represent the defendant. He executed the plaintiff’s writ of replevin. He delivered plaintiff the property replevied by virtue of the undertaking of Richardson and if anyone is to suffer by the neglect or default of the sheriff,it should be the party who placed it in his power to do the injury. It is for Richardson to look to the sheriff with whom he claims to have made such agreement for damages,for the breach thereof. It is doubtful whether such contract could be enforced against the sheriff on the ground that the same is opposed to public policy. The statute provides for the duties of the sheriff in an action of replevin with reference to the undertaking, which takes the place of the property taken, and it would seem to he contrary to public policy to permit him to accept an undertaking, delivered conditionally and not to take effect unless the plaintiff indemified the surety, with the understanding that he should under the order of delivery take possession of the. property sought to be replevied. But the agreement, if valid, would not bind the defendant. A surety cannot avoid his liability upon an undertaking in replevin by showing that he was induced to execute the same by the fraud of the plaintiff in replevin in representing that another surety, who was known to be a responsible man had already signed as surety, such signature being a forgery, the defendant not participating in the fraud. The rule being that where one of two persons must suffer loss by the fraud or misconduct of a third, he who first reposes the confidence and commits the first, oversight must bear the loss. Bigelow v. Comegys, 5 Ohio St..256.

It is not competent for sureties on an attachment bond to show that they were induced'to execute the undertaking by representations which were false. Coleman v. Beans, 1 Abbott, N. Y. Court of Appeals, 394. 'Where in an attachment suit the sheriff fraudulently induced the sureties on a bond to replevy the property attached to sign as such, they thinking ’they were signing merely a bond for tbe forthcoming of the property seized under the attachment, plaintiff in attachment not being implicated in the fraud and the bond in replevin being the correct statutory bond, the redress of the sureties is against the sheriff, and they are not entitled to be discharged from liability on the bond. Craig v. Herring, 6 Southeastern Rep. 283. See also Kingland v. Hook & Co., 33 Ohio St. 19; Dangler v. Baker, 35 Ohio St. 673; Selsor v. Brock, 3 Ohio St. 302. But it is claimed that the cases above cited relate solely to the execution of the instrument, and not to the delivery. It would seem, however, that the fraudulent procurement of the execution of an instrument would present a stronger case for relief than the case of a valid execution followed by a. fraudulent delivery.

But the authorities are numerous to the effect that in case of a delivery to the principal by the surety on condition that the bond is not to be delivered to the obligee unless certain conditions are complied with, the surety is bound, though the delivery to the obligee was in violation of the condition. Where a person signed an official bond as a surety and it was agreed between him and the principal of the bond that it should not be delivered to the obligee until another person, Avho Avás named, should sign the bond, but it Avas delivered Avithout his signature: Held, that the surety Avas bound upon the principle that the obligee, in the absence of notice, had the right to presume that the surety had conferred full authority to deliver the bond; that Avhen one of two innocent persons must suffer by the act of a third, he who has enabled such person to occasion the loss must- sustain it. Smith v. Board of Supervisiors, 59 Illinois, 412; Deardoff v. Foreman, 24 Indiana, 481; State v. McCarty, 31 Indiana, 76; State v. Peck, 53 Maine, 284; Smith v. Moberly, 10 B. Monroe, 266.

The sureties on a county treasurer’s bond signed it upon condition that other signatures should be obtained, and that the persons signing it should qualify as the OAvners of property in the aggregate to the amount of $65,000. After signing the bond they left it with J. & D., Avith the understanding between them and J. & D. that it Avas to be delivered only after the above conditions had been performed. The principal procured the bond from J. & D. in violation of the understanding, presented it to the Board of Supervisors Avithout said condition being performed, Avho accepted and approved it without any knoAvledge of said conditions, or that it had ever been deposited Avith J. & D. for any purpose. Held, the sureties could not escape liability on the ground that the bond was delivered by J. & D. in violation of the conditions, since J. & D. Avere their agents, and not those of the county. Taylor County v. King, 73 Iowa, 153.

The principal on a bond promised the surety that he Avould procure the signatures of certain other responsible persons before the bond Avas used, and it Avas agreed and understood betAveen them that the bond was not to be delivered unless four other responsible persons signed it. The bond Avas signed and delivered to the principal solely under said agreement, and Avas delivered by the principal Avithout obtaining the names of the other parties. Held , that the surety Avas estopped and bound by the acts' of the principal. McCormick v. Bay City, 23 Mich. 457.

It is no defense that a surety on a bond signed it upon condition that it should also be executed by another person as a co-surety before its delivery, and in violation of such condition the bond Avas delivered to the obligee without having been executed by such other person, it not appearing that the obligee had notice of such condition. Comstock v. Gage, 91 Ill. 328. See also Carroll County v. Ruggles, 69 Iowa, 269; Biwn v. Perkins, 42 Mich. 501; Nash v. Fugate, 32 Grattan, 595, reported in 34 Am. Rep. 788; State v. Potter, 63 Mo. 212, reported in 21 Am. Rep. 449;-Brandt on Suretyship, sec. 354, 855, and cases cited.

People v. Bostwick, 32 N. Y. 44, is the leading case cited by counsel in support of the claim that Richardson is not bound. This case is criticised in a number of the cases hereinabove cited, and has become of doubtful authority in New York, since the decision of Russel v. Freer, 56 N. Y. 67, where the court say, “The facts do not bring the case within the principle of the People v. Bostwick, 32 N. Y. 445, assuming. that that case-was well decided, which may well be questioned. ’ ’

The case of Railroad Co. v. Iliff, 13 Ohio St., 235, was a case where a deed of release was delivered to a known agent of a railroad company, authorized to procure said release with other releases of the right of way, and the sole question was whether such a delivery, though conditional, to a known agent of the principal was not in law a delivery to the principal. The court held that the releasor could constitute such agent, his-own agent for that purpose, notwithstanding he was acting as agent for the releasee; as the acceptance of an agency from both involved no violation of duty to either.

But the question of notice to the releasee of the conditional delivery did not and could not arise. The delivery was made to the known agent of the releasee, acting for the releasee to procure that particular release. Having full knowledge of the terms and conditions under which the deed of release was delivered.his knowledge was that of the principal, the railroad company. The only question made was whether the delivery was in law a delivery to the principal, it being conceded that if there was a delivery to the principal the deed was operative.

The case of Burton et al. v. Platter, 53 Fed. Rep. 901, holding that-the summary proceeding against the sureties in the lower court was invalid, does not apply here, for the reason that the court expressly held there was no statute in force in Indian Territory providing for summary proceeedings against sureties and therefore the mere fact that the sureties' had intervened in the original action to contest the right of the assigneeto the property did not, in the absence of statutory provision, authorize a judgment against them.

It is claimed that the verdict in the replevin suit finding the value of the interest of the defendant bank as mortgagee was not in accordance with the provisions of the statute. The verdict found the right of possession at the commencement of the action in the defendant, assessed the-value of the property taken at $665.00, and defendant’s interest therein at $555.46, and defendant’s damages in the sum of $555.46. It is claimed that the verdicfr-sbould have been for the value of the property, and therefore for a larger amount.

Aside from the fact that the surety could not claim to be (prejudiced-by reason of a finding that his liability is for a less sum than it should have been if his claim be conceded, the verdict was in accordance- with the provisions of the statute. Section 5826, Revised Statutes, provides: that if the jury upon issue joined find for defendant, they shall also find whether the defendant had the right of property, or right of possession-only, at the commencement of the action, and if they find either in his favor,they shall assess to him such damages as they think right and proper.

“A defendant in replevin should only recover to the extent of his interest in the property replevied, that being the extent of his damages by reason of the loss of the property. ’ ’ Lugenbeal v. Lemert, 42 Ohio St. 1; Adler v. Johnson & Co., 2 C. C. R. 95.

It is claimed that the verdict in this proceeding on the issue made by the answer of Richardson, the surety, and the reply of the defendant, is insufficient to render a judgment thereon. The verdict finds on the issues joined in favor of the bank and against the surety, without finding the amount due. But the amount of the recovery against the surety is fixed by the verdict and judgment in the defendant’s favor against the plaintiff in replevin, in the absence of a plea of payment since the recovery thereof. It was for Richardson to show cause, why the same judgment should not be rendered against him as was rendered against Catharine Woog,_his principal. The effect of the verdict against him was that he had failed to show cause. The judgment against the principal is a part of the record in this action. Being concluded by the recovery against his principal, and no claim of part payment having been -made, the amount of the recovery against him. was fixed and determined, and was not in issue. Upon such verdict judgment should be rendered for the amount of he recovery against Catharine Woog. The motion for a new trial will be overruled, and judgment rendered against the surety.

Snodgrass & Schuebly, for defendant.

T. E. Scroggy, for Richardson.

(Affirmed by the Circuit Court, October Term, 1895.)  