#### McCarthy v. Strait et al.

1. Judgment in Replevin.

Where the plaintiff in replevin obtains possession of the goods, but fails to prevail in his suit, it is the correct practice, if an order of return could be made effective, to enter an alternative judgment; yet, where it appears that the goods have been disposed of, such judgment is not required. A special finding to the effect that delivery cannot be made is not necessary. An absolute judgment for the money is equivalent to such a finding.

2, Same — Subeties—Res Judicata.

A judgment against the plaintiff in replevin is *res judicata*as to the sureties on his bond. Even though a judgment for the value of property taken in replevin, in which no order of return is made, be, irregular, the liability of sureties on the bond is not changed.

*Error to the District Court of Pueblo County.*

The action was brought by the plaintiff against the defendants as sureties on the replevin bond of one W. ,W. Palmer. During the year 1889 plaiptiff was the sheriff ,of Pueblo county. One D. C. Bowne was engaged in mercan-. tile business in the city, of Pueblo. On the 8th day of August three different firms sued out attachments against Bowne, the three aggregating about $1,450.

■ On the next day (August 9th) another and fourth firm sued out an attachment for $970.85. The various writs were *60placed in the hands of plaintiff and were by him levied upon the goods of Bowne and possession taken. On August 12th W. W. Palmer, claiming title to the goods as assignee of Bowne under an alleged deed of assignment bearing date August 3, 1889, commenced a suit in replevin against the present plaintiff to obtain possession of the goods, and executed a bond with the ordinary provisions, which was executed by the defendants herein as sureties, the penalty of the bond being in the sum of $20,000. The writ in replevin was served by the coroner of the county, the goods taken from the possession of the plaintiff and delivered to Palmer as assignee.

The various attaching creditors obtained their respective judgments against Bowne.

Upon the trial of the replevin suit in which the bond was made, the plaintiff Palmer was defeated and a judgment entered in favor of the defendant, plaintiff in this action. Palmer appealed to the supreme court. The appeal was subsequently dismissed with remittitur to the trial court. After proper time had elapsed, an execution was sued out against Palmer, which was returned *nulla*Iona, after which this suit was instituted by the plaintiff to recover from the defendants the aggregate amount of the various judgments of plaintiffs in attachment suits, being about $3,500.

The foregoing facts were properly alleged in the complaint. A demurrer was filed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Leave was given to amend the complaint. The amended complaint filed contained only one additional allegation requiring to be noticed, which was as follows :

“ That shortly after the property levied upon was taken from his possession and delivered to W. W. Palmer, as set forth in his original complaint, said Palmer sold and delivered all and singular said goods and chattels to the Paul Wilson Dry Goods Company, which said sale and delivery was long prior to the trial of said replevin case in the district court of Pueblo county, Colorado, and that the said property at the time of said trial could not be delivered by *61said Palmer to the plaintiff herein, all of which facts were shown to said court and were in open court admitted by said Palmer and his attorneys to be true.”

A demurrer was filed to the amended complaint on the same ground as before, which was sustained. Plaintiff elected to stand by his complaint, the suit was dismissed and the judgment brought to this court by writ of error for review.

Messrs. Urmy & McCorkle and Mr. L. A. Crane, for plaintiff in error.

No appearance for defendants in error.

Reed, P. J.,

delivered the opinion of the court.

The validity of the assignment of Bowne to Palmer of the goods in controversy in this suit was before this court in *Palmer v. Mc*Carthy, 2 Colo. App. 422. The assignment was held void and that Palmer took no title by virtue of the supposed assignment; hence it follows that the replevin was wrongful, and Palmer and his sureties liable to the creditors of Bowne for the value of all goods by him converted.

There is no appearance in this court by defendants; consequently the court is uninformed in regard to the supposed defects in the complaint. The court gives no reasons for sus-, taining the demurrer or for the judgment, and there is only an incidental hint or suggestion on the part of plaintiff that the court held the judgment of McCarthy against Palmer void because the judgment was not in the alternative and made dependent upon his failure to return the goods. Where the defendant is in the possession of the goods and an order of return could be made effective, it is the correct practice to enter an alternative judgment; but where, as in this case, the complaint shows the goods to have been parted with and to have gone beyond the possibility of return j such judgment would be not only unavailing, but idle and foolish. That a *62failure to make the judgment in the alternative will not render it void is declared'by many eminent authorities.

In the supreme court of the United States, in *Boley v. Gristwold,*20 Wall. 486, Chief Justice Waite, in construing the practice act of Montana, which it will be seen is substantially like ours, said: “It is true that under the civil practice act of Montana there can be no judgment for the value if there can be a delivery of the property, but it is not true' that a judgment is necessarily erroneous if the alternative is not expressed upon its face. The court must be satisfied that the delivery cannot be made before it can adjudge absolutely the payment of money. But, if so satisfied, it may so adjudge. A special finding to that effect is not necessary. An absolute judgment for the money is equivalent to,such a finding.

“ In one part of this record it appears that the verdict was for the return of the property, or, in case that could not be made, for $3,000, the value, and $800 damages for the detention, The judgment was for the money, and the presumption is, in the absence of anything in the record to the contrary, that before it was rendered the court had become judicially satisfied that the property could not be returned. In a court of error every presumption is in favor of the validity of the judgment brought under consideration. Error must appear affirmatively before there can be a reversal.”

In *Brown v.*Johnson, 45 Cal. 77, the court disposes of the question in the following short paragraph:

“ If at the trial of this action (replevin) it had distinctly appeared that the personal property in controversy had been hopelessly lost or had been destroyed, so that a judgment for its delivery would be necessarily unavailing, a failure to render judgment for its possession (under section 200 of the practice act) would, at most, be but a technical error or omission, and one for which we would not reverse the judgment. And in support of such judgment, where, as here, the record discloses nothing on the point, we will intend that the facts actually appearing below were such as to warrant its rendition.” And see Wells on Replevin, sec. 507.

*63There is another conclusive legal reason why the sureties could not avail themselves of the infirmity of the judgment against Palmer, if there was one. The undertaking of the sureties was secondary, — collateral. Upon the default of the principal, their liabilities as sureties attached.

They were not parties to the adjudication in replevin, nor could they, in this case, avail themselves of. any errors or defects in it. It was *res adjudieata.*Their undertaking was, in case of the default of the principal, to pay to the defendant such sum of money as might from any cause be recovered against said plaintiff. A judgment was entered against the principal, which he failed to pay. He appealed to the supreme court; failed to prosecute his suit as ordered by the court; the appeal was dismissed and the suit remitted to the lower court.

If the judgment was erroneous, the supreme court was the place to correct it. Failing to prosecute his suit, it, upon dismissal, became *final,*— res *adjudieata.*Neither Palmer, the principal, nor his sureties, could question its regularity. Such has been the law since the case of *Outram v.*Morewood, 3 East, 346, and dozens of authorities might be cited to the same effect. I need only cite the following from the case of *Parsons v.*Bedford, in the United States supreme court, reported in 3 Pet. 443 : “ The only modes known to the common law to reexamine such facts, are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable, or the award of a *venire facias de*novo, by an appellate court, for some error of law which intervened in the proceedings.”

A new trial having been refused in the lower court, and the appellant failing to obtain a reversal in the appellate' court, it became, as to him, conclusive, and certainly could not be attacked collaterally by the sureties in the bond. Nearly the identical question raised in this suit was decided in *Mason v. Richards,*12 Iowa, 74. The court said the only question was whether the surety was liable upon the bond, there having been no order for the return of the property *64in the replevin suit; and, after stating that the bond was in the usual form, proceeded to say that as a general rule the proper judgment in an action of replevin, where the plaintiff fails to maintain his action, is for a return of the property to the defendant; then proceeds:

“ Suppose, however, no such order is made, but the court finds the value of the property and renders judgment therefor against thé plaintiff, does such judgment, though irregular, have the effect of changing the liability of the surety in an action on the bond ? Or in other words, is it necessary in order to make him liable upon his bond, for the breach now under consideration, that a judgment *de retorno habendo*should first be entered? We think not.

“ The district court could enter no judgment against the surety in the original suit *(Janson v. Effey, supra),*for he was not in court. The plaintiff, and principal in the bond, was in court, however, and over him the court had jurisdiction. For whatever judgment the court had the power to render against him, though ever so erroneous, until reversed or set aside, he would be bound. And as a judgment erroneous merely would be binding upon him, so it would be upon his surety in an action on the bond.”

The court erred in sustaining the demurrer and dismissing the suit. The judgment must be reversed and cause remanded for further proceedings in accordance with the suggestions here made.

*Reversed,.*