Ferrer v. Jackson County Board of Supervisors

Claim and Delivery — Undertaking — Extent of Liability of Surety — Appeal — Implied Findings. Appeal — Necessary Findings to Uphold Judgment not Made will be Implied. 1. Where in an action tried without a jury the court did not make any findings of fact, any finding necessary to support the judgment will be implied and sustained unless the evidence clearly preponderates against it. Claim and Delivery — Undertaking — Extent of Suretys Liability. 2. The surety on an undertaking in an action in claim and delivery against a sheriff, conditioned for the return of the property Page 114 if return be adjudged and for the payment of such sum as might from any cause be recovered against plaintiff, is liable for the costs incurred by defendant sheriff on judgment in his favor. Same — What not Defense in Action on Undertaking. 3. Where an undertaking in a claim and delivery action had accomplished the purpose for which it was given, the surety thereon will not thereafter be permitted to free itself from the obligations and disadvantages of its engagement, on the ground that the sheriff never relinquished possession of the property in question and that therefore there was no consideration for the undertaking, it appearing that the same surety company had furnished a redelivery bond to permit the sheriff to retain possession. Same — What Does not Amount to Release of Surety on Undertaking. 4. The giving of a redelivery bond does not amount to a waiver or discharge of the undertaking in a claim and delivery action; nor does the fact that the property held under writ of attachment was subsequently sold under execution release the surety from liability for costs awarded in the claim and delivery action.