Traweek v. Heard

| Ala. | Jul 1, 1892

HARALSON, J.

— The indorsement of the clerk on the summons in the case of Geo. P. Heard, (the plaintiff in this case in the court below, v. J. A. Hicks, et at) required the defendant, I. T. Traweek, as sheriff of Butler county, to take the property mentioned in the complaint into his possession, unless the defendant gave bond, payable to the plaintiff, in double the amount of the value of the property, with condition, that if the defendants, were cast in the suit, they would, within thirty days thereafter, deliver the property to the plaintiff, and pay all costs and damages which might accrue from the detention thereof. The endorsement of the clerk followed strictly the requirements of section 2717 of the Code.

The sheriff seized the property mentioned in the complaint, except two steers, and delivered it to the defendants, upon their giving bond, which answered the mandate of the clerk, as endorsed on the summons, and as required by statute, except that it did not contain the condition — “ and pay all costs and damages which may accrue from the detention thereof.” This was a defect in the bond, which deprived it of its statutory capacity. Such bonds, to be statutory, must follow strictly the substance, and it would be well, in practice, always, the letter of the statute, and not contain conditions other or fewer than the statute requires. — Adler v. Potter, 57 Ala. 571.

The sheriff was not authorized to take any other than a statutory bond, which, if the defendants were cast in the suit, and failed to comply with its conditions, had the force and effect of a judgment, on which execution might issue against all the obligors therein, as provided by section 2721 of the Code.

The honcl required by statute to be taken in such cases, is a protective measure to the plaintiff, to secure the return to him of the property replevied, the damages for its detention, and the costs of the suit, in case the defendant is cast. The failure, therefore, of the sheriff to take a statutory bond, is a breach of his official duty to the plaintiff, for which he and his sureties on his bond, are liable in damages to him.

There was a demurrer to the complaint, assigning numerous grounds to the several breaches of the bond as set out, all of which were sustained, except such as related to the breaches for costs and damages for detention, and these were overruled, thereby visiting the demurrer upon parts, and not upon the entire complaint.

The case was then tried upon the plea of the general issue, and verdict rendered and judgment entered for plaintiff for $471.40, the amount of the costs shown to be due in the detinue suit. No damage for detention of property was found.

The court, at the request of the plaintiff, charged the jury, if they believed the evidence, they must find for the plaintiff for the entire costs in the case of Heard v. Hicks and others, and refused to give the general charge requested by the defendants. In these rulings, the court committed no error.

Affirmed.