58 So. 953 | Ala. Ct. App. | 1912
The appellee sued out a writ of attachment against the property of one Parrish, under which the sheriff levied upon property which was then in the possession of the appellant Beasley. The sheriff delivered this property to the appellants, or one of them, upon the execution by them of a bond in double the amount for which the attachment was issued, which was made payable to the plaintiff in the attachment (the appellee here), and was conditioned as follows: “The condition of the above obligation is such that, whereas an attachment issued by J. W. Draughton, clerk circuit court in and for said county, bearing date of the issuance, the 17th day of March, A. D. 1908, in favor of Burroughs & Taylor Co. against W. C. Parrish, for the sum of $188 dollars, has been levied by J. D. Jenkins, sheriff of said county, upon the following as the property of said W. C. Parrish, to wit: (Here follows a description
But the claimant failed to comply with the other jurisdictional requirements of the statute (House v. West, 108 Ala., 355; 19 South. 913), by making affidavit by himself, his agent or attorney, that he held title to or a paramount lien upon the property claimed; and, because of his failure to make the required affidavit, his claim to the property was dismissed by the court. After the claim suit was disposed of in this way, a. judgment was rendered in the original suit in favor of the plaintiff and against the defendants therein, and the property levied on under the writ of attachment isued in that suit was by that judgment condemned to the satisfaction of it. Thereafter the present suit was instituted on the- bond above described; the complaint averring that the condition of the bond has been broken by the failure of the defendants, the obligors therein, to deliver or have forthcoming the property described therein for the satisfaction of the judgment rendered in the attachment suit. The defendants (the appellants here) undertook to defend the suit, on the ground that at the time the writ of attachment was levied on the property, for the forthcoming of which the bond sued on was given, that property was not sub
Tbe contention in behalf of tbe appellee is to tbe effect that any claim by the appellants that tbe property mentioned in tbe bond sued on was not subject to be levied on under tbe writ of attachment was foreclosed by tbe judgment rendered in tbe attachment suit. In other words, its claim is that that judgment, rendered in the attachment suit at a time when tbe claimant was in no way a party to it, was a finding or adjudication that the property described in tbe bond was liable, within tbe purview of tbe provision contained in tbe condition of tbe bond to “have tbe said property above described forthcoming for tbe satisfaction of tbe judgment, if it be found liable therefor.” We do not think that this position is tenable. We are not of opinion that tbe claimant, by obtaining possession of tbe property on tbe execution of tbe bond sued on, agreed that tbe question of tbe liability of that property to be subjected to tbe demand of tbe plaintiff in tbe attachment suit might be determined in any proceeding to which be was not a party, and in which be could not be beard. Tbe nature of tbe proceeding attempted to be inaugurated by tbe giving of that bond.negatives any such conclusion. Tbe execution of tbe bond evidenced tbe assertion by a stranger to tbe writ of attachment of a claim that he, had tbe title to or a paramount lien upon tbe property levied on. Tbe giving of tbe bond may be treated as evidencing an agreement on tbe part of its obligors that tbe question of tbe liability of tbe property mentioned in it to tbe satisfaction of the demand of the plaintiff
By a proceeding under the statute (Code § 6039) for the trial of the right of property, the claimant may assert such a claim to the property as he could have asserted by a suit in detinue, if the property claimed had been held by another other Avise than under a judicial process. The staute in effect provides for a suit or proceeding by a stranger to the writ for the recovery of specific personal property levied on under an execution or an attachment. When an attempt to maintain such a proceeding is rendered abortive by the claimant’s failure to comply Avith the requirement of the statute that he support his claim by affidavit, Avith the result that the claim is dismissed, Avithout any issue having been made up betAveen the claimant and the plaintiff in the Avrit, or any finding or adjudication having been made, as authorized by the statute, as to the liability of the property levied on to the satisfaction of the demand of the plaintiff in the writ, the position in which the claimant is left is A^ery similar to that of a plaintiff in detinue, whose suit is dismissed without an adjudication settling the right or title to the property sued on. The condition
It had been settled by adjudications of the Supreme Court thát in a suit on a bond given by a plaintiff in
“Appellee insists that, inasmuch as the condition was broken on failure to return the property within the 30 days after the judgment of dismissal, the liability of the obligors in the bond became absolute; and as the purpose of the statute, authorizing a plaintiff in detinue to give bond and take possession of the property, is to secure its restoration to the possession of the defendant in case the plaintiff fails in the suit, the plaintiff here is entitled, in an action on the bond, to recover the value of the property as the measures of compensation for the failure to restore possession. In support of the contention, counsel cite and rely upon the several cases in which it has been held that, when the liability of the bondsmen on a bond given for the forthcoming of property attached or levied on under execution has become fixed by demand, and indorsement of the bond, ‘Forfeited,’ they are estopped from denying the liability of the property to the process, and from setting up any adversary claim.—Rosewald v. Hobbie, 85 Ala. 73 (4 So. 177, 7 Am. St. Rep. 23.) In such case, execution may be issued on the bond against the principal and sureties. No execution can be issued on the replevin bond given by the plaintiff in detinue, if unsuccessful, unless the altérate .value and damages for detention have been assessed, judgment rendered therefor, and the sheriff has returned
“The admissibility of proof of ownership, for the purpose of mitigating the damages, depends on very differ-, ent 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 any purpose; but, if not determined and settled, they may show ownership in mitigation of damages.—Pearl v. Garlock, 61 Mich. 419, 28 N. W. 155, 1 Am. St. Rep. 603; Wells on Replevin, §§ 447, 448. The judgment of dismissal in the action of detinue was not a judgment on tiie merits, and, not having been followed by the summary judgment provided by the statute, did not settle the right and title to the property. It determined the right of the defendant in the suit to have the property restored to his possession; but this is the only consequence.
“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 nonsuit. 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
We have quoted at such length from tbe opinion in tbe case mentioned because of tbe similarity of the contention there adversely disposed of to that advanced by tbe appellee in tbe case noAV under consideration, and because the reasoning upon which tbe court based the conclusions announced in that opinion are regarded as largely controlling in tbe determination of questions presented in the instant case. No reason occurs to us for giving to a judgment dismissing tbe statutory proceeding instituted by a stranger to tbe process for tbe recovery of specific personal property levied on under legal process an effect upon tbe right or title of tbe claimant that is not accorded to a judgment in like manner dis
The conclusion that a judgment rendered under such circumstances in favor of the plaintiff in the original suit is not an adjudication binding upon the claimant as to his right or title to the property in question results from a consideration of the nature of the statutory proceeding for the trial of the right of property. While that proceeding is sui generis in its nature, not being an independent suit, but dependent for its maintenance on the pendency of the suit in which the levied process was issued (Cofer v. Reinschmidt, 121 Ala. 252, 25 South. 769), yet plainly it is a separate, though dependent and collateral', suit or proceeding, involving a sep
The fact that the giving, of the bond evidences the assertion of a claim distinctly adverse to both the parties to the attachment suit negatives any inference that the obligators consented that the question of the right to the property levied on might be determined in a suit or proceeding with which no one other than the parties to the original suit were connected, and the judgment in which is not by law made binding upon the obligors in the claim bond, or either of them. Plainly the provision contained in its condition, “to have the said property above described forthcoming for the satisfaction of the judgment, if it be found liable therefor,” so far as. it had reference to a finding to that efiféct in the proceeding in'which the bond was given, referred to a finding on
In view of the nature of the statutory proceeding for the trial of the right of property, as above referred to, and in the light of the above-quoted rulings on- a somewhat similar question arising in suits on bonds given by plaintiffs in detinue, Ave are of opinion that obviously analogous considerations applicable ■ to the question of the effect to be accorded, in a suit on a claim bond, to the judgment rendered in favor of the plaintiff in the attachment suit after the dismissal of the claim suit, lead to the conclusions that that judgment, not haying been preceded by a trial of the issue provided for by the statute between the plaintiff in attachment and the claimant, and the rendition of the judgment authorized by the statute on a finding in favor of the plaintiff in attachment (Code, §§ 6040-6042), was wholly without effect as an adjudication against the claimant’s right to the property levied on; and that, so far as he is concerned, the question as to whether the property levied
But there is such a dissimilarity between the provision of the condition of the bond given by a plaintiff in detinue,"“to deliver the property to the defendant within thirty days after judgment” (Code, § 3780), and the provision of the condition of the claim bond sued on, “to have the property forthcoming for the satisfaction of the judgment or claim for the plaintiff, if it be found liable therefor” (Code, § 6039), that a conclusion similar to that reached in suits on detinue bonds, that the liability of the obligors became absolute on a failure to deliver the property within 30 days after judgment, is not warranted in a suit on a statutory claim bond. The plaintiff in the present suit does not show that the condition of the bond sued on has been broken by proving merely that the property mentioned was not had forthcoming to satisfy the judgment in his favor in the- attachment suit, hut must prove, also, that that propery was subject to the satisfaction of that judgment. As that question is one to be determined in this suit, it follows that if it is determined in favor of the defendants, the plaintiff is not entitled to recover at all. In other words, if the defendants sustain their contention that the claimant owned or had a paramount lien upon the property levied on at the time of the levy, the existence of such a state of affairs has the effect, not merely of mitigating the damages recoverable, but of preventing the plaintiff from recovering even nominal damages.
It follows from the conclusions above announced that the court was in' error in sustaining the demurrers to the defendant’s third and fourth pleas.
Reversed and remanded.