Wilson v. Massachusetts Bonding & Insurance

ON MOTION FOR A REHEARING. Plaintiff, on motion for a rehearing, complains that we have overlooked State ex rel. Stevenson v. American Surety Co. (Mo. App.), 74 S.W.2d 1094, and Veale v. Bourne, 224 Mo. App. 614,30 S.W.2d 793, which she contends support her construction of Section 1449, Revised Statutes Missouri 1939, Missouri Revised Statutes Annotated, that is, that the section contemplates that suit on an attachment bond must be brought against both the surety and the principal so that the principal may avail himself of any setoff or counterclaim he may have against the party to whose use the suit is brought. It is obvious that these cases lend no support to such construction of the statute. What the cases hold is that the proper remedy is by an independent suit on the bond and not by motion in the attachment suit. They do not hold that the suit must be brought against both principal and surety. In fact, State ex rel. Stevenson v. American Surety Co., the very case which plaintiff chiefly relies on, was brought against the surety alone.

Section 1448, Revised Statutes 1939, Missouri Revised Statutes Annotated, provides that the bond given by the plaintiff, or other person, in a suit by attachment, may be sued on at the instance of any party injured, in the name of the State, to the use of such party, for the breach of the condition of such bond. This section prescribes the remedy to be pursued by the party injured, that is, by an independent suit on the bond. It is obvious that the purpose of section 1449 is not to prescribe the remedy to be pursued by the party injured, for his remedy is prescribed by section 1448. The purpose of section 1449 is merely to permit any obligor sued on the bond — whether principal or surety — to avail himself of any setoff or counterclaim he may have against the party to whose use the suit is brought, notwithstanding the bond runs in the name of the state and the suit is so brought.

An attachment bond, like other security bonds, is a joint and several contract, and the obligors thereon are jointly and severally liable, and suits may be brought against any one or more of the obligors. [Secs. 3340, 3343, R.S. 1939, Mo. R.S.A.; State ex rel. Dunklin County v. Blackmore, 275 Mo. 695, 205 S.W. 626; Schneider v. Maney, 242 Mo. 36, 145 S.W. 823; State ex rel. Ozark County v. Tate, 109 Mo. 265, l.c. 268, 18 S.W. 1088; State ex rel. Yeoman v. Hoshaw, 86 Mo. 193.]

The Commissioner recommends that the motion for a rehearing be overruled.