68 Ark. 320 | Ark. | 1900
(after stating the facts.) 1. The recital of the judgment is: “And the court being fully advised in the premises, and it appearing from the proceedings that this is an action of replevin in which the plaintiff had obtained possession of the property herein, and that the plaintiff had executed a replevin bond with John W. Glenn as his surety.” This i*ecital shows tlmt Glenn, petitioner, was a party to the replevin suit. Although the bond may not have been returned by the sheriff with the order of delivery, as required by § 6393 of Sandels & Hill’s Digest, this is not a matter of which the. surety can complain, or take advantage of to show that he was not a party to the proceedings. The bond_ is given for the benefit of the defendant in the action. When it has been executed in the presence of the sheriff, as required bysection 6387, id., and the property has been taken away from the defendant, and delivered to the plaintiff, it has performed its office, and the surety, by the act of executing the bond, has made himself a party to the suit, and thereafter shall be so considered, and no further notice is required.
Non est factum is not pleaded. It appears that the bond was taken by the sheriff, executed by petitioner, and the property taken from the defendants, and delivered to the plaintiff, in the replevin suit. The judgment shows the execution of the bond by petitioner, and, even if it were proper to consider the affidavit of the sheriff that the bond was “never filed in the clerk’s office” (which we do not decide), that does not contradict the recitals of the judgment. The sheriff, on motion of defendant, could have been made to bring the bond into court before any judgment was rendered upon it. For aught that appears to the contrary, the bond was before the court when he rendered judgment. Suffice it to say, we must accept the recitals of the judgment as true, although the bond may not have been filed in the clerk’s office, and although the sheriff at the time he made his affidavit might have still had the bond in his possession. Glenn, then, being a party to the record, if the court had jurisdiction to render judgment against Olson, his principal, all other matters of which he here complains could and should have been corrected on appeal.
2. Did the court have jurisdiction to render the judgment complained of against Olson? It is urged that it did not have, for two reasons: (a) Because, having taken a non-suit, he (Olson) was out of court, and no longer within its jurisdiction; (b) the defendants having failed to file a plea to the merits, there was no law entitling them to judgment.
The judgment must be looked to as a whole. The judgment of non-suit, and for a return of the property to the defendants or its value, is all in one entry. All doubtless took place simultaneously, and was intended to embrace, and did embrace, one order. The parties were all before the court. Section 5792 of Sand. & H. Dig. provides that the plaintiff may dismiss any action in vacation in the office of the clerk, on the payment of all costs that may have accrued therein, except an action to recover the possession of specific personal property, when the property has been delivered to the plaintiff. This shows the policy of the law. True, “there is nothing in this ■statute that prohibits a plaintiff in replevin from dismissing his action in term time with the consent of the court.” But it would be monstrous for any court to yield its consent to such a proceeding, leaving the plaintiff in the possession of the property which the processes of law had enabled him to acquire. It was unnecessary to make such a prohibition, for it will always be assumed that courts will not consent for,, or permit, one to profit by his own wrong. The defendant asked for judgment in his favor, just as soon as the plaintiff moved for a non-suit. This was tantamount to denying the plaintiff’s right to the property, and was, to all intents, setting up a claim to the property. Before the judgment of non-suit was entered, the defendant interposed his claim to the property, which, although verbal, was equivalent to an objection to the verbal motion to non-suit, unless the property was returned to the defendant. It was in answer to plaintiff’s verbal motion to dismiss. There is nothing in the ease like those cases where, instead of urging some claim to the property, the defendant interposes a plea in abatement or in bar of the proceedings. Here it appears from the judgment.that defendant announced, “Ready for trial.” It does not appear from this that he was seeking to avoid a determination of the matters in controversy on. the merits. The effort to avoid the trial was by plaintiff.
We find nothing in the record for which to quash the judgment of the circuit court in the case of P. A. Olson v. Jeff Porter. The petition for a writ of certiorari is therefore dismissed.
