Hall v. Smith
Supreme Court of Iowa
Appeal from Polk District Court. PLAINTIVE sues upon a replevin bond, given by Smith as principal, and Bates and Phillips as sureties. Defendants set up, and there was evidence tending to show, that the action of replevin was dismissed by agreement of the parties upon the promise of Bates to pay to Hall the sum of one thousand dollars, sometime during the ensuing fall, but there was no ¡iroof that he paid the same.
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Appeal from Polk District Court. PLAINTIVE sues upon a replevin bond, given by Smith as principal, and Bates and Phillips as sureties. Defendants set up, and there was evidence tending to show, that the action of replevin was dismissed by agreement of the parties upon the promise of Bates to pay to Hall the sum of one thousand dollars, sometime during the ensuing fall, but there was no ¡iroof that he paid the same. Plaintiff asked the following among other instructions: “ That an agreement to settle a suit by the payment of a certain sum at a future time, can not operate as a release of…
1Opinion of the CourtWright, C. J.
The condition of the bond in a replevin action is, that the plaintiff therein shall appear at the return term of the process, prosecute his suit to judgment, and return the property if a return shall be awarded him. If he fails to thus prosecute his suit, the defendant recovers such damages as he may prove himself entitled to, and this he may have judgment for in the trial of the action which determines the right of possession, or-he may resort to his remedy on the bond. And so if the action is dismissed or discontinued with or without the consent of the defendant, he may sue upon the bond…
2Cited by23 opinions
- McCarty v. KepretaNorth Dakota Supreme Court · 1913
- Hart v. National Masonic Accident Ass'nSupreme Court of Iowa · 1898
- Boom v. St. Paul Foundry & Manufacturing Co.Supreme Court of Minnesota · 1885
- Barry v. State Surety CompanySupreme Court of Iowa · 1967
- Marix v. FrankeSupreme Court of Kansas · 1872
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