| Ill. App. Ct. | Apr 11, 1899
delivered the opinion of the court.
A. C. Woodyatt brought an action of replevin against John Gibson, Frank U. Kelly and Isaac Parry for a piano, and gave a replevin bond to T. W. Reno, the constable, to whom the writ was delivered. The property was not found. The writ was read to Gibson and Kelly. The original and an alias writ were returned not found as to Parry. The action proceeded in trover and there was a judgment against Gibson for $200 damages, and discharging Kelly. Kelly brings this suit upon the replevin bond to recover his attorney’s fees in defending the suit. At the close of the evidence for plaintiff the court instructed the jury to find for defendants. The only question before us is whether in such a case the sureties on the replevin bond are liable for attorney’s fees of a defendant. The condition of the bond in suit conformed to the requirements of section 10 of the replevin act. The result shows the writ was not wrongfully sued out, but that Gibson wrongfully took the piano, and that Woodyatt was entitled to its possession if it could be found. If the piano had been found the judgment would have been that plaintiff was entitled to its possession. If therefore the property had been found the judgment must have been such that no liability upon the bond would have remained. There could have been no judgment for the return of the property. But no property was found, and till the actual taking of the property under the writ there could be no liability on the bond. (Wells on Replevin, Sec. 425; Nickerson v. Chatterton, 7 Cal. 568" date_filed="1857-07-01" court="Cal." case_name="Nickerson v. Chatterton">7 Cal. 568.) A judgment in a replevin suit which does not award a return does not impose any liability upon the sureties on the replevin bond. (Cobbey on Replevin, Sec. 1311.) When the officer failed to find the property the suit in replevin was necessarily at an end. Our statute allowed plaintiff, at his election, to proceed in trover. This was practically a change in the form of the action. (Udell v. Slocum, 56 Ill. App. 216" date_filed="1894-05-22" court="Ill. App. Ct." case_name="Udell v. Slocum">56 Ill. App. 216.) Thereafter the practice and rules pertaining to an action in replevin were no longer applicable. As said in the Udell case, supra, an affidavit in replevin was no longer necessary after the change to trover. Suppose after this case had been turned into an action of trover, defendants had shown the security upon the replevin bond was insufficient, or that the terms of the bond did not comply with the statute; would defendants have had the right to compel the plaintiff to give another bond % It seems plain to us they would not, because it was no longer a replevin suit, and no bond is required in an action of trover. We are of opinion it was not the intent of the statute that the replevin bond should secure costs and attorney’s fees in the action of trover following a failure to obtain any of the property on the writ. It may be the bond would secure the constable for his legal fees in attempting to find the property, but that question is not involved here. The legal services for which this suit is brought were all rendered after the suit had ceased to be an action of replevin by the return that the property was not found. The court below correctly held that the evidence did not show a liability upon the bond.
The judgment will be affirmed.