Rhodes v. Burkart , 28 S.C. 154 ( 1888 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

One Tim McKnight brought an action of claim and delivery of personal property against the appellant, Moses Rhodes, and upon the execution of the required undertaking in such ease provided, the property was delivered to him. This undertaking was signed by the said -McKnight and the respondent, A. Burkart, in which they became bound to Rhodes in the sum of thirty dollars for the prosecution of the action, for the return of the property, if a return be adjudged, and for the payment to Rhodes of such sum as might for any cause be recovered by him. The action was prosecuted to judgment in favor of Rhodes for the return of the property, and for the recovery of $42.55 costs, adjudged to him. The property was returned and execution issued for the costs against McKnight, which was returned unsatisfied.

The action below was then commenced against the respondent, Burkart, demanding judgment for the amount of the undertaking mentioned and for costs. A jury being waived, the case was heard by his honor, Judge Witherspoon, who decided in favor of the defendant, respondent, with leave to enter judgment with costs. The appeal seeks to reverse this judgment.

We think, upon a proper construction of the undertaking, it included the costs. It stipulates in'terms not only for the return of the property in ease a return be adjudged, but also for the payment of such sum as may for any cause be recovered in the action by Rhodes. The complaint alleges that the defendant, Rhodes, was adjudged to recover possession of the property and also $12.55, his costs. Judgment should have been awarded appellant at least to the extent of the sum mentioned in the undertaking — $30. See Voorhies Code (10 Edit.), 308, referring to Tibbles v. O’Connor, 28 Barb., 538, where the precise question was raised and decided as above.

It is the judgment of this court, that the judgment below be reversed and the case remanded.