Smith v. Fisher

| R.I. | Apr 1, 1882

The question is whether a replevin bond, signed in the name of the plaintiff in replevin by another person professing to sign it as the plaintiff's agent, but having no authority so to sign it, is such a bond, if otherwise in due form, as will authorize the service of the writ of replevin, or, if not, whether the bond can be made good retroactively, so as to authorize the maintenance of the action by subsequent ratification. We are very clear that such a bond is not the bond prescribed by statute, and consequently that it will not authorize the service of the writ. The bond required by the statute is a bond with sufficient sureties executed either by the plaintiff or "some one in his behalf." The bond here was not executed by the plaintiff, either in person or by attorney, nor was it executed by any one in his behalf; for the signer merely signed the name of the plaintiff as obligor, signing it as agent when he had no authority, and did not himself sign it as obligor in the plaintiff's behalf. It follows, the bond being prerequisite to valid service, that the service was void.Whitford v. Goodwin, ante, p. 145; Purple v. Purple, 5 Pick. 226; Garlin v. Strickland, 27 Me. 443" court="Me." date_filed="1847-06-15" href="https://app.midpage.ai/document/garlin-v-strickland-4928236?utm_source=webapp" opinion_id="4928236">27 Me. 443, 445. We are also very clear that the service, being originally invalid, cannot be validated without the consent of the defendant by any subsequent ratification. To hold that it can would be to hold that the condition precedent to valid service can be created after the service, which is preposterous. Brahn v. New Jersey Forge Co. 38 N.J. Law, 74; Pickard v. Perley, 45 N.H. 188" court="N.H." date_filed="1864-06-15" href="https://app.midpage.ai/document/pickard-v-perley-8047084?utm_source=webapp" opinion_id="8047084">45 N.H. 188. The writ must therefore be abated. But if we abate the writ on the defendant's plea for want of service, we do not see how we can give him judgment for return and restoration. Unless he consents to the jurisdiction, we cannot give judgment even in his favor on the subject matter of the suit. The most we can do is to give him judgment with costs on the preliminary matter at issue, namely, on the question of service or jurisdiction.

Judgment for defendant abating the writ, with costs.