Passow & Sons v. United States Fidelity & Guaranty Co.

There are two appeals herein, one by the defendant from the judgment and one by the plaintiff from an order after final judgment striking out certain items from its cost bill. We shall dispose of these in their order. This is the second time this cause has been before the appellate tribunals upon the defendant’s appeal. The facts of the case leading up to the institution of the action were thus summarized by the supreme court upon the former appeal:

The ground upon which a reversal was had upon the former appeal was that the execution in the original action in which the undertaking sued upon in this action was given appeared to have been prematurely returned, and that for that reason this action, in the then state of its pleadings, could not then be maintained, the supreme court saying upon that subject:

Upon the remission of the cause for retrial plaintiff amended its complaint by inserting the following averment: “That Charles Bowman, the defendant in that action, did not have any property subject to levy or means wherewith to satisfy said execution or judgment, or any part thereof, on the fourteenth day of February, 1913, the date on which said execution issued, or at any…