43 A.2d 742 | Conn. | 1945
In this action against the defendants as principal and surety, respectively, on a replevin bond, the court rendered judgment for the defendants to *285 recover their costs, and the plaintiffs have appealed. The court's finding, which is not subject to material correction, may be thus summarized: On September 1, 1938, Alphonso Criscuolo owed the C. I. T. Corporation, hereinafter referred to as the defendant, a combined balance of $1409.05 upon the purchase price of two automobiles, evidenced by notes secured by contracts of conditional sale of which it was the assignee for value. On September 6, 1938, an action was instituted in the Superior Court in New Haven County, to recover for goods sold, in which the present plaintiff Meyers was a plaintiff and Criscuolo a defendant. In that action one of the present plaintiffs, O'Brien, as a deputy sheriff, under a writ of attachment, took possession of these two automobiles, which then had a value of $1150. The present defendant, as owner under the conditional bills of sale, made demand upon O'Brien for the surrender of the automobiles. O'Brien and Meyers refused to surrender the automobiles or to pay the amounts claimed due thereon. The present defendant on September 21, 1938, instituted a replevin action against them for the two cars, returnable to the Superior Court in New Haven County. The replevin bond which is the basis of this action was executed, in connection with that replevy, by the named defendant as principal and by the defendant National Surety Corporation as surety.
The replevin action was tried to the court on October 15, 1941, and on December 2, 1941, judgment for the possession of the automobiles and for costs was rendered in favor of Meyers and O'Brien. On December 28, 1942, this judgment was affirmed by this court. C. I. T. Corporation v. Meyers,
These in substance were the court's material conclusions: (1) This action was brought to recover judgment upon a replevin bond; (2) the plaintiff Meyers was an obligee in the bond because of his attachment lien upon the two automobiles; (3) he extinguished this lien by his agreement of settlement with Criscuolo, and any right under the lien was further precluded by the judgment striking his case against Criscuolo from the docket; (4) possession of the automobiles under the judgment in the replevin action was awarded to him only as an attaching creditor; (5) from and after November 14, 1941, which was prior to the original decision in the replevin action, his interest in the automobiles was solely as assignee of Criscuolo; (6) the judgment in the replevin action did not invalidate the conditional bills of sale against either the conditional vendee Criscuolo or his assignee Meyers; (7) Meyers, having extinguished his lien and abandoned his attachment, is no longer an attaching creditor, as such has *287 no further rights as obligee in the replevin bond, and cannot recover judgment thereon.
The nature of the obligation incurred by the defendants by the execution of this replevin bond is clear under the decisions of this court. As was stated in Hannon v. O'Dell,
By virtue of the attachment of the automobile in the action against Criscuolo, the present plaintiffs acquired a quasi lien thereon of a limited nature which could constitute at the most no more than an inchoate property interest. Property so attached and "in the custody of the law is considered as security for the satisfaction of the plaintiff's judgment, should he obtain one. Morgan v. New York National B. L. Asso.,
Even if it be assumed that the scope of the cause of action alleged in the complaint was not restricted to one for liability arising from the defendants' undertaking set forth in the replevin bond as held by the court, but that it also comprehended damages for the taking of the cars by the replevin process, constituting a wrongful act per se, as contended by the plaintiffs, the result must be the same and the defendants are entitled to judgment. This is so because, as already explained, the plaintiffs' only interest in the cars was that created by and realizable under the attachment. Accordingly, the termination, either by the agreement of settlement with Criscuolo or by the judgment striking *289 the case from the docket, of the cause of action which was the sole basis of the attachment automatically put an end to any possible claim for damages for taking the cars out of the plaintiffs' possession.
There is no error.
In this opinion the other judges concurred.