State ex rel. Spangler v. Immer , 52 Mo. App. 536 ( 1893 )

Smith, P. J.

This is a suit on an attachment bond, wherein the relator had judgment and defendants have brought the case here by writ of error. It appears from the record before us, that*the defendant in the attachment suit, after the seizure of his property by the sheriff under the writ, executed a forthcoming bond with sureties thereon, as provided in section 644, Revised Statutes. Plaintiff had judgment in the attachment suit and caused execution to be issued thereon, which was returned unsatisfied. The court thereupon directed the sheriff to assign the forthcoming bond to plaintiff, which was accordingly done, and, upon motion of the plaintiff in the attachment, judgment was rendered against the defendant and his sureties on the said forthcoming bond. Revised Statutes, sec. 574. Execution was issued on this last-named judgment, and the relator was summoned as garnishee thereon. Upon the issues made in the garnishment proceedings, the garnishee' prevailed with costs, consisting of an attorney’s fee, clerk and sheriff costs; the two last items were assigned to the garnishee, and to recover which this suit was instituted against the plaintiff and her sureties on the attachment bond.

The only question in the case is, whether the plaintiff and her sureties are liable on the attachment bond for the costs which were adjudged in favor of relator in the trial of the garnishment issues. This must be determined by reference to the terms of the attachment bond, which are that, “if the said plaintiff shall prosecute her action without delay and with effect; refund all sums of money that may be adjudged to be refunded to defendant, or found to have been received by the plaintiff and not justly due to her; and pay all damages and costs that may accrue to any defendant or garnishee, by reason of the attachment or any process or proceedings in the suit, or by reason of any judgment or process thereon, then this obligation to be void; otherwise to remain in full force.” The rule is well settled in this state, that, where the liability of sureties is involved, courts will not extend the construction of an instrument beyond its plain and obvious meaning. Mfg. Co. v. Hibbs, 21 Mo. App. 574; Cochrane v. Stewart, 63 Mo. 424; Bauer v. Cabanne, 105 Mo. 110. Nor to other subjects, persons or periods of time than those expressly included in the sureties’ contract.

The obligation of the . bond by the express terms thereof was that the obligors would “pay all damages and costs that may accrue to any * * * garnishee * * * by reason, first, of the attachment, or, second, any process or proceeding in the suit, or, third, by reason of any judgment or process thereon.” The judgment on the forthcoming bond against the sureties thereon, under the statute, took the place of the judgment against the attached property, and the notice to the relator as garnishee on the execution issued on the judgment was a “process thereon,” as much so as if it had been given on the execution on the first judgment.

Our construction is the practical one, and best accords with what seems to us to have been the intent of the lawmaker in requiring bond in attachment suits, viz., to provide indemnity to any defendant, garnishee or interpleader against damages and costs which may accrue to them by reason of the attachment, or any process or proceeding in the suit, or by reason of any judgment or process thereon. We think the relator was a garnishee for whom indemnity was provided in the attachment bond, and, such being our conviction, the judgment will be affirmed.

All concur.