86 Ala. 502 | Ala. | 1888
A statutory action for the recovery of personal property in specie was instituted by Ernst Brothers against appellee. The requisite affidavit having been made, and bond given, the property was seized by the sheriff, under an order for that purpose. Appellee having failed to give a replevin bond within the time prescribed, Ernst Brothers executed bond, and took possession of the property. In con.sequence of the subsequent dismissal of the suit, and the failure to restore possession of the property to appellee, he brings the present action upon their replevin bond.
The statute provides: “That in all actions for the recovery of specific property, in any of the courts in this State, when the property sued for is in the possession of the plaintiff at the termination of the cause, and said cause is dismissed, on motion of either party, or on plea in abatement, it shall be the duty of the court trying the same, forthwith to impanel a jury to assess the alternate value of the property, and also
After a full review of the authorities, and consideration of the question involved, the court ruled, that, as there is nothing in the statute which confines the parties to the statutory remedy provided, they may invoke such remedy, or sue on the bond, at their election. The legislature having enacted, subsequently, a statute substantially extending the provisions of section 2719 to cases of dismissal of the detinue suit, on motion or plea in abatement, without the use of any words indicating an intention to confine the parties to the statutory remedy, we must infer that they intended that the statute should receive the same construction, which had previously been placed on that section: The summary judgment is not requisite to the right of the plaintiff to maintain the suit. If such judgment had been obtained, there would have been no necessity of a suit on the bond.
2. The main point of contention is, whether the defendants, having dismissed their detinue suit, can in this action set up ownership of the -property, either as a full defense,
The admissibility of proof of ownership, for the purpose of mitigating the damages, depends on very different principles — on the consequences of the judgment in the detinue suit. The general rule is, if the right and title to the property is adjudicated and determined in the action, all such questions are regarded as finally settled, and the obligors in the replevin bond, given by the plaintiff, are estopped from setting up, in a subsequent suit thereon, title to the property for but, if not determined and
This question was presented and decided in Savage v. Gunter, 32 Ala. 467. In that case, the suit was on a replevin bond given by the plaintiffs in the action of detinue, with substantially the same condition as the bond on which the present action is founded. They took a voluntary non-suit. In the suit on the replevin bond, the trial court refused to allow the defendant to prove, even in mitigation of damages, that the property belonged to the plaintiffs in the detinue suit. It was held, that a voluntary non-suit by the plaintiffs, and failure to deliver the property according to the stipulation of the bond, constituted a breach of the condition, and estopped the obligors from asserting ownership as a bar to the action; but that proof of ownership was admissible in mitigation of damages. Had the plaintiff obtained, in the detinue suit, the summary judgment against the plaintiffs therein, authorized by the statute, it would have been conclusive on the question of ownership, and on the return of the sheriff of the failure to deliver the property, the bond would have had the force and effect of a judgment upon which execution could have issued. But, when the plaintiff, by reason of not having obtained such judgment, was compelled to resort to a suit on the replevin bond as a common-law bond, the amount of recovery only extends to the legal damages caused by the breach of the bond. If the property belonged to Ernst Brothers, and the plaintiff had merely a possessory interest, he is entitled to recover the damage done to such interest by the failure to deliver the property, but not its full value. Evidence as to the ownership should have been'received.
3. The demurrer to the pleas in abatement was properly sustained. — Minniece v. Jeter, 65 Ala. 222.
Reversed and remanded.