On appeal from the Camden County Circuit Court.
For the appellant, Grover G. Richman.
For the respondent, William C. Gotshalk.
The opinion of the court was delivered by
PERSKIE, J. This appeal brings up for review a judgment, not printed in the state of case, but, in fact, entered, striking appellant's answer.
In a prior suit between the respondent and one Peter Lewandowski, appellant did, on November 22d, 1932, in pursuance of section 17, paragraph 1 of our Attachment act (1 Comp. Stat. (1790-1910), p. 141), execute and deliver his bond for $1,000 to the sheriff of Camden county.
The cited provision of the statute is as follows: "The defendant * * * may give bond with one or more sufficient sureties * * * in one of the form herein provided, to wit:
"1. A bond to the officer who attached the personal property in double the appraised value thereof, conditioned for the return of the said property in case judgment shall be rendered for the plaintiff or for any of the applying creditors; which bond, in case of breach of said condition, the said officer, shall, on application of the plaintiff or applying creditor, without fee, assign to such person as the court shall direct, to be prosecuted for the benefit of the plaintiff and applying creditors."
The bond executed and delivered by appellant as aforesaid was in the following form:
"* * * if the said Peter Lewandowski, his executors or administrators, shall return the said goods and chattels, rights and credits, moneys and effects [one Nash sedan automobile] seized and taken by virtue of the said writ of attachment, in case judgment shall be rendered for the plaintiff, then this obligation to be void, else to be and remain in full force and virtue." (Italics ours.)
Respondent, who was the plaintiff in the attachment suit (no creditors applying), on April 4th, 1934, recovered a judgment in the Camden County Circuit Court against Peter Lewandowski in the sum of $500 plus costs, totaling $652.62. A rule to show cause why a new trial should not be granted was discharged on April 22d, 1934. On June 21st, 1934, the present suit was instituted; the gravamen of the complaint is that the appellant contrary to his undertaking breached his bond, in that he did not return the goods and ...