Kimball v. Bleick

24 Or. 59

• Court: Oregon Supreme Court
• Decided: July 1, 1893
• Status: Published

Opinion

Per Curiam.

This is an action against the principal and his sureties on a redelivery bond given in a replevin suit, pursuant to section 137 of Hill’s Code. The defendants Mever and Lynch interposed a demurrer to the complaint, which the court overruled, and, refusing to further plead, final judgment was rendered against them.

The errors assigned are: (1) That the undertaking is void because it runs to the sheriff instead of the plaintiff, and therefore no action can be maintained upon it; and (2) that if it is good the complaint is defective, because the action is brought in the name of the wrong person. Undei¡ section 137 of Hill’s Code, an undertaking may be given to the sheriff, made payable to the plaintiff, who is the real party in interest and for whose benefit the undertaking is taken. The undertaking, then, being sufficiently in compliance with the statute, an action may be maintained upon it, and the plaintiff, being the real party in interest, is the proper party to prosecute.

The judgment is affirmed.