Troy v. Rogers

116 Ala. 255 | Ala. | 1896

McCLELLAN, J.

Section 2532 of the Code of 1886, (Code of 1896, § 2058), is as follows : “When bond has been executed by the plaintiff or the defendant for the forthcoming of the property in contest, the value of the property and the damages resulting from its retention must be assessed by the court or jury trying the contest; and if the unsuccessful party fails for twenty days after judgment to deliver the property and pay the damages, as required by the condition of the bond, it shall be the duty of the sheriff to make due return of that fact; and upon such return being made, the bond shall have the force and effect of a judgment, and execution may issue thereon against the obligors on the bond for the value of the property and the damages assessed, or either, and costs.” The bond referred to in this section is that provided by two preceding sections to be given by the de-fendant — section 2522 of Code of 1886 (Code of 1896, § 2048) — or, if he fail for five days, &c., by the plaintiff— section 2523 of Code of 1886 (Code of 1896, § 2049) — where personal property has been levied upon, a claim of exemption thereof has been interposed by the defendant in the process, and such claim is contested by the plaintiff in the process. For all the purposes of these several sections, it is immaterial whether the process is a writ of attachment or an execution upon judgment; the one essential in this connection is. that a levy, whether of the one writ or the other, has been made upon the property; the statutes employ only the word “levy.” Hence it is that a bond reciting a levy without more, would be in strict conformity to the statutory requirement and fully show the statutory occasion and consideration for its execution. If, however, it recited the levy of an execution or of an attachment, as might be the fact, it would not, of course, be objectionable therefor. Neither, of course, would it be aided thereby. A question in this case is as to the effect upon such bond, as a statutory obligation and in-respect of the summary proceedings upon it authorized by the section quoted, of a misrecital therein of the process levied upon the property in contest; the fact being that an attachment was as levied and the recital being that an execution was levied. We can not think the misrecital is of any importance. The fact misstated, being of matter of mere inducement to the obligation, and not necessary to be stated at all as inducement or otherwise, is surplusage, and .to be disregarded as such. With or without the characterization of the levy as having been made under an execution, and whether such characterization be true or false, the bond fills all the terms of the statute ; it shows upon its face that it was given for the forthcoming of certain property levied upon and claimed as exempt, it identifies the contest with respect to the pendency of which it is given, and shows that the obligors bind themselves to the forthcoming of the particular property involved in that contest. It is essentially the bond the execution of which by the plaintiff or defendant, forms the basis for nn assessment of the value of the property in contest, and the summary proceedings thereon authorized by section 2532.

It follows that the assessment by the city court of the value of the property in contest in and by the judgment sustaining the claim of exemptions was authorized and required by tire statute. The value being an issue in that case and therein determined, the parties to the case are bound and concluded by that determination. The sureties on the forthcoming bond given by the plaintiff on the contest, though not strictly parties to the cause, are bound by the judgmeut equally with their principal, no fraud or collusion intervening; they might have discharged the bond by paying the value so assessed, and the assessment being thus conclusive in their favor must be so also against them. The present plaintiff might have had the bond returned forfeited and an execution issued upon it as á judgment; but these rights were not exclusive of his right to sue, as he has in this case, on the bond itself, and recover thereon what has been ascertained judicially in a proceeding to which the obligors were par ties, or the judgment in which was as binding upon them as if they had been parties to the record, to be the value of the property which the bond required should be delivered to him, but which in breach of the condition thereof has been withheld by the principal in the undertaking.

The city court erred in excluding the judgment in the contest from the jury; and its judgment is reversed. The cause is remanded.

Reversed and remanded.