Watson v. Simpson

Cole, J.

John H. Watson instituted suit by attachment against C. M. Simpson.

John M. Gould & Co., the present appellants, became security on the defendant’s bond given to the Sheriff to release the property attached, binding themselves in the sum of seven thousand dollars, to pay the plaintiff whatever judgment should be rendered against the defendant, conditioned “ that if the defendant shall satisfy such judgment as may be rendered against him in the suit, then this obligation to be void, or else, to remain in full force.’’

Pinal judgment having been obtained against the defendant, execution issued, and after duo demand, the writ was returned •' no property found.”

Thereupon, the'securities were called into court on a rule to show cause why they should not pay the amount of judgment, to-wit, the sum of $4,613 51, with interest, rendered in the original suit against defendant, their principal on the bond, for whose indebtedness they had become sécurity..

Prom judgment upon this rule, condemning them to pay the amount of judgment rendered against the defendant, the securities have appealed.

The principal ground urged for a reversal of the judgment upon the rule is, that plaintiff’s writ of attachment was quashed by an interlocutory judgment, from which no appeal suspending its execution was ever taken.

That said judgment became, as to appellants, final and definitive after the lapse of ten days.- That the judgment quashing- the attachment in fact annulled the bond given by the defendant, with appellants as his securities, for the release óf the attached property.

It appears to us, that even if the appeal taken by plaintiff1 from the interlocutory judgment was not suspensive, but devolutive, still that the bond remains in force in the present case.

The bond was in the place of the goods that had been attached, and after the rendition of the interlocutory judgment setting'aside the attachment, and the termination of the time for a suspensive appeal, neither appellants in the present suit nor the defendant in the original suit, their principal upon the bond, moved the court to dissolve tho bond ; no judgment was ever rendered, which annulled the bond.

Upon the appeal from the interlocutory judgment quashing the attachment, this court reversed the judgment and reinstated the attachment.

*710The interlocutory judgment being executory, but never having been executed by moving to quash the bond; and as the bond remained in existence at the moment the judgment of this court was rendered, reversing the interlocutory judgment and reinstating the attachment, it is clear, that the bond, which is in the place of the goods attached, remains in its full vigor. Even if the effect of the interlocutory judgment quashing the attachment was to annul the bond given for the release of the goods attached, yet, as that judgment was never executed by having the bond canceled, the judgment of the District Oourt, which held the securities liable, is correct.

We must not be considered as deciding that appellants had the right to have the bond quashed, after the rendition of the interlocutory judgment, from which a devolutive appeal only was taken, and that the reversal of the interlocutory judgment by this court would not have reinstated the bond. Upon this point wo express no opinion. It should also be observed, that the present case differs from that of Love, Savage & Co. v. McComas & Cloon, 14 An. 201. In that case, an interlocutory judgment had been rendered, more than two years previously to the appeal upon the final judgment in the case, and no appeal had been directly taken from the interlocutory judgment.

Judgment affirmed, with costs of appeal.