First Commercial Bank v. Valentine

McLaughlin, J. (dissenting):

I dissent on the ground that the undertaking, when given, took the place of the property. Its purpose was to insure a return of the property in case a judgment were procured directing its return and inured to the benefit of any party to the action entitled to the possession of the property at the time the judgment was rendered. (Code Civ. Proc. § 815; Christal v. Kelly, 88 N. Y. 285; Potter v. Van Vranken, 36 id. 619; Becovitz v. Sapperstein, 46 Ind. App. 339.) The *97statute permits, under certain circumstances, the substitution of parties, and this fact must have been known to the sureties at the time the undertaking was given, and I think we should hold that it was given subject to such contingency. (Helt v. Whittier, 31 Ohio St. 475; Howell v. Alma Milling Co., 36 Neb. 80.)

I think the judgment should he affirmed and the defendants permitted to withdraw their demurrer and interpose an answer on payment of the costs in this court and the court below.

Scott, J., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, as to first and third causes of action. Order to be settled on notice.