Kuhn v. McMillan

14 F. Cas. 874, 3 Dill. 372

• Court: U.S. Circuit Court for the District of Kansas
• Decided: November 15, 1873
• Status: Published

Opinion

DILLON, Circuit Judge.

There must be judgment for the plaintiffs. The stipulation as to the non-residence of the defendant, which is his only proof, does not overcome •the record entry to the effect that after a joint judgment had been entered against Fessenden & Co. and McMillan, that “the defendants” prayed an appeal, on which appeal the judgment against McMillan was reversed. The appellate court regarded the present defendant as being before it on that appeal, and reversed the judgment against him. But, without resting my judgment upon this view, I am of opinion that, under the laws of Tennessee, the judgment against the defendant as surety .on the delivery bond was authorized, and is not, as defendant’s counsel contends, void for want of notice. Property had been attached and was in the custody of the court. The defendant signed a bond to release the property, and conditioned that he would be liable for any debt the plaintiffs might recover, unless the property released should be re-delivered to the sheriff when ordered by the court. The bond takes the place of the property for which it is substituted, and the statute requires it to be returned and filed in court. By the statute in force at the time the defendant signed .the bond, it was provided that the bond should constitute part of the record, and that judgment might be entered thereon against the principal and surety, in the event of a recovery 'against the principal, without scire facias or notice.

The defendant, therefore, by the execution of the bond in the course of a pending cause, connected his fortunes with the fortunes of his principal, so far, at least, as to authorize the court to enter judgment against them thereon. By the execution of the bond under the statute, the defendant places himself in court, and agrees that judgment may be entered against him, without further process, if judgment is entered against the principal obligors. It is obvious that such is the view taken of the statute by the supreme court of the state, since that court directed the entry of the very judgment which is the basis of the present action. Under the constitution and legislation of congress, that judgment is entitled to the same faith and credit that are due to it in the state from which it came.

Our conclusion is well sustained by authority. Pratt v. Donovan, 10 Wis. 378; McRae v. Mattoon, 13 Pick. 53; Bigelow, Estop. 226, and cases cited. And, under the statutory provisions of the state of Tennessee, the conclusion reached can, perhaps, be reconciled with cases which, as respects the right of special bail to notice, differ from those above referred to. Robinson v. Ward’s Ex’rs, 8 Johns. 86; Holt v. Alloway, 2 Blackf. 108. Judgment for the plaintiffs.