Jæger v. Stœlting

30 Ind. 341

• Court: Indiana Supreme Court
• Decided: November 15, 1868
• Status: Published

Opinion

Erazer, J.

This was a suit on a bond to a sheriff to release property attached from the sheriff’s custody. The answer was to the effect that a judgment was recovered by a third person against the plaintiff in this suit, upon which Richman, the principal in the bond sued on, became replevin bail; and that one Brinkmycr also recovered a judgment against Richman; that executions were duly issued on said judgments after the levy of the attachment; that said executions were, by the direction and consent of the plaintiff, levied upon the attached property, and it was sold by the sheriff", wherefore it could not be returned. A demurrer to this answer was overruled, and upon that arises the only question presented.

The answer shows that the plaintiff" himself participated in the unauthorized act of the sheriff in seizing and selling the property' by virtue of the executions, thus putting it out of the power of the obligors of the bond to comply with the condition of the instrument. The appellant questions the sufficiency of this answer, but furnishes us with neither reason nor authority upon which to base a judgment in his favor. A point thus attempted to be thrust upon us for decision, by way of mere experiment, may well bo deemed to be waived. Wo think, however, that the answer was good.

J. Milner, J. L. Ketchcmi, and'J. L. Mitchell, for appellant. A. G. Porter, B. Harrison, and W. P. Fishback, for appellee.

The judgment is affirmed, with costs.