#### Reeg, Respondent, vs. Adams and others, Appellants.

*November 9, 1901*—

February *18, 1902.*

*Undertaking: Reformation: Supplying omissions: Pleading: Prejudicial error: Sheriffs: Officers: Execution against the body: Return.*

1. An undertaking to discharge a defendant from arrest, which gives the title of the case, and recites that the defendant therein had been arrested, and that he as principal and certain others as sureties undertook “that the said-shall at all times render himself amenable to the processes of the court,” furnishes the means of supplying the missing word with absolute certainty and needs, no reformation.

2. The complaint in an action on such undertaking stated two causes of action, one seeking a reformation of the undertaking and recovery thereon as reformed, and the other seeking a recovery as though it needed no reformation. A demurrer to each cause of action being overruled, the defendants answered, and a trial was had which resulted in a verdict for plaintiff. *Held,*that since the undertaking needed no reformation, it was error to overrule a demurrer to that cause of action, but, that under the provisions of sec. 2829, Stats. 1898, *176requiring tlie court to disregard any error not affecting substantial rights, the error was not prejudicial.

3. A complaint on an undertaking given to discharge a defendant from arrest, alleging that such undertaking was filed in the proper office by the plaintiff, plainly .infers that the plaintiff accepted the bail, and is sufficient although it does not allege, as required by sec. 2702, S. *&*B. Ann. Stats., that the sheriff delivered to the plaintiff the order of arrest with his return indorsed thereon, together with a certified copy of the undertaking.

4. The provisions of sec. 2970, S. & B. Ann. Stats., that every execution shall be returned within sixty days after its receipt by the officer, applies to executions against the body as well as against property.

5. An execution against the body of defendant was issued May 28th, and on June 18th following, the sheriff made return thereon “not found.” *Held,*that if the officer acted in good faith and on sufficient knowledge, he might return it before the expiration of sixty days after its receipt.

Appeal from a judgment of the circuit court for Clark county: JaMes O’Neill, Circuit Judge.

*Affirmed.*

The complaint attempts to set out two causes of action.It is first alleged that the plaintiff commenced an action against the defendant *Adams,*and obtained an order of arrest thereon. Thereafter he was arrested by the sheriff, whereupon the defendants gave a written undertaking pursuant to sec. 2697, S. & B. Ann. Stats., a copy of which is as follows, omitting the verification:

“Circuit Court, Clark County, Wis.

“George Eeeg, Plaintiff, vs.

“Alfredo B. Adams, Defendant.

“Whereas, the above-named *Alfredo B. Adams*has been arrested in this action: Now, therefore, we, *Alfredo B. Adams,*as principal, and *B. D. Webster,*liveryman, of the city of Neillsville, Clark county, Wisconsin, and *H. M. Boot,*county clerk, of the city of Neillsville, Clark county, Wisconsin, undertake pursuant to the statute in the sum of one thousand dollars that the said-shall at all times render *177himself amenable to the process of the court during the pendency of this action, and to such as may be issued to enforce the judgment thereon.

“Dated June 26, 1896. Alebedo B. Adams.

“E. D. Webster.

“H. M. Root.”

Then follow allegations showing that the word “defendant” or the words *“Alfredo B. Adams”*were left out of the paper by mistake of the attorney who drew it, stating-the circumstances. The plaintiff accepted the paper believing it was a valid undertaking, and defendant *Adams*was released from his arrest. Judgment was afterwards secured by plaintiff in said action, and an execution against the property of the defendant *Adams*was duly issued May 24, 1898, and returned unsatisfied May 28th. An execution against the body was issued May 28th, and returned June 18, 1898, with a certificate that the defendant could not be found, and the defendants thereby became liable on the undertaking to the amount of $1,000.

The second cause of action is one at law upon the undertaking as though it were valid and needed no reformation. It alleges the commencement of suit against *Adams,*his arrest, the giving of an undertaking pursuant to the statute, its delivery to the sheriff, the discharge of *Adams,*and the filing of the undertaking in the clerk’s office, with the same allegations as to plaintiff’s obtaining judgment and issuing executions and their return as heretofore mentioned.

The defendant sureties demurred to the complaint on the ground that several causes of action had been improperly united, the first being one in equity, and the second, one at law. They also demurred because neither the complaint nor either count thereof stated facts sufficient to constitute a cause of action. The demurrer was overruled, .the trial court holding “that there was no necessity for a reformation 6f the undertaking,” and that only one cause of action was stated. *178Tbe sureties then made answer. No bill of exceptions Las been settled in this case. The record brought to this court shows the verdict of a jury for plaintiff for $1,090, and a judgment entered thereon by the clerk, dated May 11, 1900, for the plaintiff, with costs. Erom this judgment the defendants bring this appeal.

Eor the appellants there was a brief by *MacBride & MacBride,*attorneys, and *B. J. MacBride,*of counsel, and'oral argument by *B. J. MacBride.*

*L. M. Bturdevant,*for the respondent.

The following opinion was filed November 29, 1901:

BaedeeN, J.

This case must be determined upon the record, no bill of exceptions having been settled. The trial court decided that the undertaking set out in the first cause of action was valid and sufficient, and did not require reformation. If this conclusion is correct, then it follows that no cause of action was stated in the first count. The alleged imperfection in the undertaking consisted in the omission of some word identifying the person who should at all times render himself amenable to the process of the court. The *hiatus*can be filled from a mere inspection of the paper. It first gives the title of the case, and recites that *Adams,*the defendant, had been arrested. Then follows a further recital that *Adams,*as principal, and the other defendants undertake “that the said-shall at all times render himself amenable to the processes of the court,” etc. , The instrument itself furnishes the means of supplying the missing word with absolute certainty. Any person of ordinary intelligence would have no difficulty in filling the blank without the aid -of extraneous evidence. The case comes clearly within those of curable uncertainty where the blank may be filled from the instrument itself. 2 Parsons, Cont. 563; 1 Addison, Cont. (7th Ed.), 166. See *State v. Schwartz,*64 *179Wis. 432, and cases cited; *Mississippi River L. Co. v. Wheelihan,*94 Wis. 96; *Ellis v. Barron Co.*111 Wis. 576. Tbe instrument not needing reformation, tbe effort to state a cause of action for its reformation failed, and tbe defendants are wrong in tbe conclusion that a cause of action in equity was stated. Tbe demurrer should therefore have been sustained to tbe first cause of action.

Tbe question then arises whether tbe error is so substantial as that tbe judgment must be reversed. Sec. 2829, Stats. 1898, says that tbe court shall disregard any error that shall not affect tbe substantial rights of the adverse party, and that no judgment shall be reversed by reason of such error. It appears from the record that after tbe demurrer was overruled tbe defendants interposed an answer, and that a jury trial was bad, and a verdict rendered for tbe plaintiff. This could only be upon tbe theory that tbe second count in tbe complaint stated a cause of action at law, and was the only cause of action appearing from tbe complaint. We are inclined to agree with this view, and therefore bold that tbe action is one at law, and was properly disposed of by tbe court and jury. Tbe failure of tbe court to sustain tbe demurrer to tbe first count in no way operated to tbe prejudice of defendants. They bad tbe full privilege to litigate tbe case on tbe merits, and to make their full defense, if they had one.

When we come to inspect tbe complaint to determine whether it will stand tbe test of tbe demurrer, we find a ■complete cause of action at law stated, unless it is susceptible to tbe objections hereinafter to be considered. Tbe complaint in the second count sets out tbe action brought by plaintiff against Adams, bis arrest, tbe execution of the undertaking pursuant to sec. 2697, S. & B. Ann. Stats., and its delivery .to tbe sheriff, tbe release of *Adams*from arrest, and tbe filing of such undertaking by tbe plaintiff in tbe office of the clerk of tbe circuit court. Then follow allegations as to tbe *180rendition of the judgment against *Adams,*the issue and return of the property execution unsatisfied, the issue of the execution against the body and the return “Not found,” and the failure of the hail to produce their principal. The defendants argue that the complaint is demurrable, because it does not allege that the sheriff ever delivered the order of arrest with his return indorsed thereon, with a certified copy of the undertaking, to the plaintiff or his attorney. It is alleged that the undertaking was given, *Adams*was discharged from arrest, and the undertaking was filed in the office of the clerk of the circuit court by the plaintiff. The requirements of sec. 2702 are for the benefit of plaintiff and the sheriff. The service of the copy of the undertaking upon plaintiff is to advise him of the sureties, and if within ten days he does not serve notice that he does not accept the hail, he is deemed to have accepted it, and the sheriff is exonerated. When the plaintiff takes and files the undertaking, the plain inference is that he accepted the hail, unless it is made to appear that he notified the sheriff to the contrary.

The execution against the body was issued May 2nd, and returned “Not found” June 18th following. The defendants insist that no cause of action arises against them until the full sixty days named in the execution had expired. Sec. 2970, S. & B. Ann. Stats., in force at the time the execution was issued, provides that “every execution shall he made returnable within sixty days after its receipt hy the officer.” This applies to executions against the body as well as against property. In the recent case of *Davelaar v. Blue Mound I. Co.*110 Wis. 470, we had occasion to consider a similar contention relative to a property execution. We then held that, if the officer acted in good faith, and upon sufficient knowledge of the financial condition of the defendant, he might return his execution before the sixty days had fully elapsed. ‘ We see no reason for making a different rule regarding executions against the body. They are both controlled by the same *181statute, and must be governed by the same rules, so far as tbe return of tbe same by tbe officer is concerned.

*By the Court.*— Tbe judgment is affirmed.

A motion for a rehearing was denied February 18, 1902.