Campbell v. Clark

Howe, J. This suit was commenced by attachment, and in Ms answer the defendant, Clark, asked for damages against plaintiff and his surety on the attachment bond. He did not ask, however, that the surety he cited, nor was he cited. The motion, made by the plaintiff, therefore, to dismiss the appeal taken by defendant, on the ground that the latter has not made the surety a party to the appeal, must he-denied, the surety being no party to this litigation. Upon the merits, the important question whether or not the claims of the plaintiff had been settled with the defendant, Clark, prior to *243 the institution of the suit, is left in such doubt by the conflict of testimony, that we have deemed it proper to remand the cause for a new trial. C. P., 906. It is therefore ordered that the judgment appealed from be avoided and reversed, and the cause remanded for a new trial; appellee to pay the costs of the appeal. Rehearing refused.