128 Ky. 506 | Ky. Ct. App. | 1908
Opinion op the Court by
Reversing.
In April, 1904, J. B. Gibson filed suit against W. A. Ray and J. C. Frazier, in wiMeb be alleged that be was tb'e owner of and entitled to the immediate possession of a certain lot of tobacco, amounting to about 5,500
The bond executed in the replevin suit is as follows: “J. B. Gibson, Plaintiff, v. W. A. Ray, etc., Defendants, Bond. We undertake to the defendants W. A. Ray, etc., that the plaintiff J. B. Gibson shall duly prosecute this action, and shall perform the judgment of the court therein, returning the tobacco ordered to be delivered to- the plaintiff J. B. Gibson, if a return thereof be' adjudged, and by paying to the defendants W. A. Ray, etc., such sums of money as are adjudged in this action against plaintiff, not exceeding $1,900, and the costs of this action. This 20th day of April,
From the record before ns it appears that the defendants in the replevin suit did not seek a return of the tobacco taken thereunder, nor did they seek to recover of plaintiff therein any sum of money for the seizure or detention of this tobacco-, but they choose rather to defeat plaintiff’s right of recovery by non-suit, and in this they were successful, for their demurrer to plaintiff’s petition was sustained, and his petition was dismissed, with judgment for their costs.
The petition alleges that J. B. Gibson did not duly prosecute the replevin suit, but the record refutes this allegation, and, on the contrary, shows that he not only prosecuted it duly, but did so with diligence, both in the circuit court and in this court. He did everything that was in his power to succeed in that suit, and only surrendered his right to maintain it when a judgment had been entered in this court denying him that right. No return of the property was adjudged to the defendants in the replevin suit, nor any sum of money ordered to be paid to them, other than the costs of the suit. These costs, the sureties allege, have been paid, and this is not denied.
The only question left .for determination is, may the defendants in the replevin suit, having failed to procure an order for the return of the property in that suit, or a judgment for any sum of money as damages in that suit, now in an independent action» proceed against the sureties on the bond?
In the case of the Ky. Land & Immigration Co. v. Crabtree, 118 Ky. 395, 80 S. W. 1161, 26 Ky. Law Rep. 283, a somewhat similar question was presented. In that -case the appellant had filed its? suit in replevin, executed a bond, and caused an order of* delivery to be
In the more recent case of Mounts v. Murphy, 126 Ky. 803, decided hy this court Oct. 24,1907, and found in 104 S. W. 978, 31 Ky. L. R. 1193, almost identically the question here involved was before this court. In that case a resident of Virginia instituted a suit in replevin in the Pike circuit court, executed the bond required by section 184 of the Code, procured an order of delivery for certain cattle and articles of personal property, and, under said order, was placed in possession of the property described therein. At the following term of court the defendant in the replevin suit moved that the plaintiff, being a non-resident be required to execute a bond for costs. This motion was
One of the provisions of the bond is that the plaintiff in the replevin suit will duly prosecute that action. As above stated, the record in this case shows that he did so. The other covenants in the bond are to the effect that the plaintiff shall return the property if a restitution is adjudged, and that they will be answerable to the' defendants in the' replevin' suit for such sums as may be adjudged them therein. In order to determine the liability of the bondsmen upon these two covenants of the bond, we must look alone to the judgment in the replevin suit, for the covenants expressly provide that their liability in these particulars is to be measured by that judgment. When, so tested we find that there has been no breach of the bond whatever for Avhich these bondsmen can be held liable.
For the reasons indicated the judgment is reversed and remanded, with instructions to the lower court to set aside the judgment so far as the sureties Vallandingham, etc., are concerned, and enter a judgment dismissing the proceedings as to them, with judgment for their costs.