Gunn v. Pickering ( 1891 )

Opinion by

White, P. J.

§ 276. Replevin bond; liability of sureties on. Pickering brought this suit against appellants for the recovery of a mule valued at $75, and for the use of the mule $25; and at that time Pickering also sued out a writ of sequestration, and took possession of the mule, but it was after-wards replevied by the defendant Gunn, who executed a replevin bond,, with the other appellants in this case as sureties on his replevin bond. In the county court, to which this case was appealed and tried after the trial in the justice court, a judgment was rendered in favor of Pickering for the recovery of the mule, or $75, its value, and $25 for its use, and for all costs. This judgment was rendered against Gunn, the defendant in the original suit, and also against his sureties upon his replevin bond. We deem it necessary to notice only two of appellants’ assignments of error. The third assignment is that it was error to render judgment for the use of the property in the absence of any evidence of the value of such use. This error is not well taken, because it appeal's from the statement of evidence made in appellants’ brief that W. T. Gunn, appellant, while upon the witness stand testifying in his own behalf, stated that two-year-old mules were frequently used, and one year’s use of one is worth about $25. There was no error in rendering the judgment for the $25 for the use of the mule against W. T. Gunn, the original defendant, but it was error to render the judgment for $25 also against the sureties on W. T. Gunn’s replevin bond. Their undertaking in the replevin did not render them liable for the value of the use of the mule prior to the time of the execution of said bond. Because of this error in the judgment the judgment is reformed so as to make it a judgment against W. T. Gunn, Frank Gunn, V. W. Hale and O. P. Hale for the recovery of the mule, or its value, $75, and costs, and against W. T. Gunn alone for the additional sum of $25, the value of the use of said mule for one year.

December 22, 1891.

Judgment reformed.