Mills v. Rodewald

dissenting:

. Judge Brady after stating tbe facts as above set forth in addition thereto said:

It may be here noted that it did not appear on the original motion that Mrs. Rodewald was not indemnified in any way by her husband. It further appears also that Mrs. Rodewald ■denies her liability on the bond executed by her under the laws of this State. This statement presents the questions which we are called upon to examine and the facts are novel. the departure of the defendant Rodewald was not made under any “unsettled conditions. He bad applied for bis discharge and bad ■obtained it. the details were left with bis lawyers and be bad the right to suppose that they would be carried out. His absence was therefore justified and warranted. As soon as practicable after Imowledge of the invalidity of bis discharge be returned to this jurisdiction, ready to submit to its process. There is in the case, therefore, so far as the bail are concerned, and their principal in ■connection with them, the absence of all bad faith, the absence of any intention to evade the jurisdiction of this court in all its plentitude. the bail defended the action brought against them, relying on the validity of the discharge granted to their principal, .and were sustained until the adverse judgment of the Geueral *303Term. Until that judgment they were not called upon to exercise any power over their principal, because until that event he was free from arrest by the decision of this court, made by the appropriate tribunal for the trial of such questions, and their duty to have their principal here to answer in any way should be held to have commenced then and then only. Bail are treated with great liberality by the courts. The failure of the execution against the person, to accomplish its object, does not establish the absolute right of the judgment creditor to a remedy agamst them. The principal .may still be surrendered -and the obligation of the bail wholly discharged in that way, and the surrender may be allowed after the expiration of the twenty days given to answer the complaint in the action against them. The power of the court to allow this cannot be questioned. It becomes a matter of discretion and of costs. (Code of Civil Procedure, 601; Brady v. Brundage, 59 N. Y. Rep., 310, and cases cited.)

Under the peculiar facts and circumstances disclosed on this motion (excluding for the present the question of the assumed indemnification), the application should have been granted because of the good faith of the principal and bail, and of the existing pronounced and adjudicated legal defence to any proceeding by the judgment creditor, until the decision of the General Term which changed the relations of the defendant Hildreth to such creditor, and imposed upon the bail the obligation either to surrender their principal or pay the judgment, and because of the readiness of the principal to respond to the process against his person and thus answer the ultimate penalty of the proceeding against him, indicated by his presence for a surrender as soon as practicable after the judgment making it necessary for him to appear. As already suggested this obligation mentioned did not exist as an absolute duty until such decision, because the defence created by the discharge was sustained.

Having arrived at this conclusion, the question remaining is whether the indemnification is such as to deprive the defendant Hildreth of that consideration, which is shown to bail as a general rule in the exercise of the equitable powers of the court.

It does not seem to be sufficiently established that such an *304indemnity exists. If it exists at all it is in the form of a bond, the value of which depends upon the property situate in the State of Kentucky and is one executed by the wife of the principal, not only without indemnity from her husband, and having no relation to or connection with her separate estate, but under circumstances which render its validity as an instrument doubtful. The alleged threats and intimidations by the judgment creditor which secured the execution of the bond are not met, and if true, render the bond void. (See Eadie v. Slimmon, 26 N. Y. R., 9; Story’s Equity, § 239; Whelan v. Whelan, 3 Cow., 537; Sears v. Shafer, 1 Barb., 44; S. C., 2 Seldon, 272; Howell v. Ransom, 11 Paige, 538; Ellis v. Messervie, id., 467; Evans v. Ellis, 5 Denio, 640.) This is not a case in which the bail has money in his hands, or goods of any kind in his possession to meet the obligations assumed, but at best, a doubtful indemnity; doubtful in its validity as a binding instrument, and also in regard to the responsibility of the person making it. Under all the circumstances of this case, therefore, we think the motion made on the second application should have been granted, and that the order made at Special Term should be reversed, and the cause sent back to the Special Term for consideration as to the terms to be imposed.

Order affirmed.

This motion was decided by the Special Term, and upon appeal to* this court the order was affirmed, but with leave to the appellant to renew the motion at Special Term, which has been done,, with a similar result. The opinion of the judge at Special Term, shows that the relief sought was denied, mainly upon the ground that Hildreth holds an undertaking, executed by the wife of Rodewald, to indemnify him against any loss to which he may be subjected in consequence of becoming bail for her husband, and that the facts do not show that such security is either worthless or inadequate. '

We think his conclusion is not without foundation. The obligation was voluntarily assumed by Hildreth, and relied upon by the plaintiff. The wife of Rodewald has interposed for the protection of her husband, and pledged her property, as the law allows her to do. The act may have been improvident on her part, and Hildreth may have acted unwisely in becoming bail, yet *302the obligations were voluntarily assumed, and tbe fact will not justify this court in reversing the order of tbe Special Term. It .should be affirmed.

I am of opinion that the court below- was correct in bolding that the new application did not essentially change the facts as presented before, and did not show that the indemnity given to the bail by Mrs. Rodewald was invalid or insufficient, wholly or in part, or that she w'as insolvent. the order should therefore be affirmed, for the reasons assigned on the former appeal to this court.

Neither tbe facts nor tbe law have been changed, and our sympathies ought not to lead us to disregard tbe legal rights of tbe plaintiff.