REPORTS OF THE DECISIONS OF THE COURT OF APPEALS OF THE STATE OF COLORADO. APRIL TERM, 1897. [No. 1155.] Cox ET AL. v. SARGENT. 1. REPLEVIN-SUIT ON Bond. 2. EXCEPTIONS. Where trial was to the court and no exception was saved to the findings or the entry of judgment in the bill of exceptions the question of the sufficiency of the evidence cannot be considered on appeal. Appeal from the District Court of La Plata County. Messrs. GALBREATH & SEARCY, and Messrs. C. E. & F. HERRINGTON, for appellants. VOL. X-1 (1) Messrs. RITTER & RUSSELL, and Mr. EWING ROBINSON, for appellee. BISSELL, J., delivered the opinion of the court. The principal inquiry suggested by this record respects the right of the defendant in a replevin suit which has been dismissed at the plaintiff's costs, wherein the judgment entered does not adjudge a return of the property to him, or find its value to recover in an action on the replevin bond the value of the property taken by the plaintiff. In 1892, the Hansen Produce Company obtained a judgment against the Durango Packing Company which was a copartnership composed of E. C. Arnold and H. W. Cox for $782.01 with costs. On the 24th of June the plaintiffs sued out an execution from the district court wherein the judgment was entered, and placed it in the hands of Sargent who was the sheriff of La Plata county, who proceeded to make a levy thereunder. In attempting to collect it, the sheriff seized a lot of stock running on the range and while he held them for the purposes of the satisfaction of his writ, James A. Cox commenced a replevin suit against him to recover possession of the property and damages for its detention. In this suit James Cox averred ownership, the right of possession and the value of the property. It will be ob served that the execution ran against H. W. as one of the execution defendants, and was levied on property to which his brother claimed title. That suit was defended by the sheriff who set up his special interest, the recovery of the judgment, and the writ under which he was proceeding, and contested the claim which James had asserted in the replevin suit, asserting the title to the property to be in H. W. In that replevin suit an undertaking was given under the statute, which was signed by the principal, James Cox, and Schutt, Strater and Chapman, as sureties, who are the other three defendants named in the present action. That replevin suit went to trial before a jury who on the issues rendered a verdict, which appears in the record, setting forth that the defendant was entitled to the return of the property and had the right of possession at the time of the commencement of the action. What we now state as shown by the record respecting the proceedings of the court in the replevin suit is not stated as of grave or controlling importance in the determination of the present inquiry, but to illustrate the basis of the appellants' contention. In the trial of the present suit the plaintiff introduced the entire record in the replevin action and therefrom these particular facts are gathered. On the incoming of the verdict in the replevin suit a question arose as to the proper judgment entry, and it would seem neither the plaintiff in that suit nor the defendant offered any evidence as to the value of the property. It therefore became impossible for the court to enter the alternative judgment for the return of the property or the payment of its value. The plaintiff was called on by the defendant to make proof of value, which he declined, and the defendant made an application to open up the case to prove that value which the court refused, except on conditions which the defendant declined to accept, and thereupon the defendant made a motion that the suit be dismissed at the plaintiff's cost. This was done. The only particular fact which is of controlling significance in settling the legal question which the appellants present, springs from the form of the judgment entry which was simply the dismissal of the plaintiff's action and for costs. On the trial of the present suit on the undertaking, under the issue which was made by the statement of all these various facts and a general denial of the allegations of the complaint, the plaintiff introduced the entire record in the replevin action together with the execution and the sheriff's return, and produced the sheriff as a witness who testified that to his knowledge the judgment had not been paid. Practically the only evidence of the value of the property offered in this action was the complaint in the replevin suit in which the value was alleged, the affidavit in replevin, and likewise the undertaking sued on The which contains a like recital and states it to be $2,000. demand for its return sufficiently appeared, and on this evidence and proof the court rendered judgment for the obligees for the amount of their original claim with interest and costs, and interest on the costs, making a total judgment of $1,165.79. The case was tried to the court without a jury and in examining the abstract and the record we are unable to find that the appellants saved any exception to the findings and judgment of the court in the bill of exceptions. The only exception which is apparent in the record is found in the record proper and in the judgment entry. The appellants insist that the judgment should be reversed and that the plaintiff cannot maintain his action since he failed in the original replevin suit to obtain a judgment for the return of the property and a finding as to its value. This contention is based on the general statutory provision which is found in most states, which provides that in actions for the recovery of possession of personal property the verdict of the jury shall determine the right of possession and ascertain the value and that judgment shall be entered in the alternative for the return of the property or the payment of the value found by the verdict. The appellants insist that without a judgment in this form a party may not maintain. a suit on the undertaking. The undertaking contained not only the condition that the party should return the property if the return should be adjudged or pay whatever its value might be found to be by the judgment, but should also prosecute his action with effect. The right of the plaintiff to recover on an undertaking containing these conditions has been the subject of consideration in many states, and we are free to admit that the decisions are not in accord on this question. Some undoubtedly hold that if the defendant fails to obtain that which is his right, a judgment for the return of the property and one finding its value, that when he brings suit on his undertaking and the only breach which he is able to prove is the one for the prosecution of the action with effect, he can only recover nominal damages and the costs which were adjudged in his favor. The cases are uniform to the proposition that a bond of this description must be taken to contain distinct and independent conditions, and that a breach of any one will give rise to a cause of action. This principle has been recognized by the supreme court of this state in a case where the question was directly presented. Imel v. McDeren, 8 Colo. 90. The decision however does not proceed far enough to indicate the opinion of that court on the particular matter now under consideration. It is in harmony with the authorities which hold the conditions independent, and that either of the stipulations, the breach being proven, will support a suit. There are undoubtedly well considered opinions which decide that the obligee in the replevin bond may not recover any other damages than those which directly flow from the breach proven which on a dismissal of the action would only be nominal damages and costs awarded. There are other cases which do not proceed to this extent, but determine that where the suit has been dismissed or a nonsuit entered, an action may be maintained for the breach of the condition to prosecute with effect, but that in cases of this sort it is open to the defendant to contest the matter of the title to the property as between the plaintiff and the defendant in the replevin action, or the matter of value, or any other questions which might have been legitimately litigated in the replevin suit. They proceed on the theory that when no judgment for the return or for the value of the property has been entered, there is no estoppel against the obligors in the bond, and they may litigate any questions as to which they might otherwise be concluded. There are also cases which hold that a judgment of dismissal or of nonsuit is totally different from a final judgment between the parties, and that the obligees in the bond may then recover whatever damages they have sustained notwithstanding there was no judgment entered in accordance with the statutory provision. Such seems to be the rule in California. Mills v. Gleason, 21 Cal. 274. This case is particularly referred to because the princi |