145 Ky. 424 | Ky. Ct. App. | 1911
Opinion oe the Court by
Affirming.
Henry C. Cornett brought an action in the Breathitt Circuit court against L. D. Howard to recover certain personal property. He took out an order of delivery which was executed by the sheriff and Cornett executed a bond with Charles E. Wyatt, etc., as sureties, pursuant to section 184 of -the Code, to the effect that Cornett would duly prosecute the action and that he would per-from the judgment of the court therein, by returning the-property if a return thereof was adjudged, and by paying such sums of money as should be adjudged against him in the action. Cornett did not prosecute the action with diligence, and on the motion of Howard it was dismissed for want of prosecution with cost. Thereupon this suit was brought by Howard against Wyatt, etc., on the bond executed in that action. The circuit court sustained a demurrer to the petition on the ground that no judgment had been rendered in the former action for a return of the property or for the recovery of any money except the cost and there was no averment that the costs were unpaid. The plaintiff stood by his petition, and the action having been dismissed, he appeals. Section 388 of the Code provides:
■ “In an action for the possession of specific personal property the plaintiff may have judgment for its delivery, if it can be had; and, if not, for its value and for damages for its detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for the return of the property, or its value if a return can not be had, and damages for the taking and withholding of the pronertv. ’ ’
In Ky. Land Co. v. Crabtree, 118 Ky., 395, it was held that where in an action like this, the plaintiff, after getting possession of the property under an order of de
“We are referred to the case of Kentucky Land and Immigration Co. v. Crabtree, 118 Ky., 395, 26 Ky. Law Rep., 283, 80 S. W., 1161, authorizing an action on a bond against the surety to recover from him damages when not fixed in the judgment disposing of the action for the claim and delivery of the property. The question in that case was not like the case at bar. In that case the plaintiff in the action obtained possession of some logs by giving the bond and afterwards disposed of them, entered a motion, and dismissed the action without prejudice and the court decided that it had violated its bond, in that it failed to duly prosecute the action. The court said in that case that: ‘The plaintiff should not be permitted, by the execution of a bond, to obtain the possession of the property and upon its own motion dismiss the action without prejudice, and thus relieve itself and surety from all responsibility on the bond. ’
“This case is different. Here the defendant, now appellee, upon his own motion caused a dismissal of that action and caused judgment to be rendered in his behalf for the property if to be had, if not, for its value, but failed to present and recover the damages he had sustained by the taking and withholding of the property from him. See also the case of Rogers v. Bradford, 8 Bush, 163.”
We cannot see that this case can be distinguished from that. Howard had the case dismissed. He neglected to have a judgment entered either for the return of the property or for damages for its detention. The court in the two cases referred to drew a distinction be
Judgment affirmed.