53 Ala. 11 | Ala. | 1875
The only question presented is whether a statutory execution may issue against the sureties on a replevy bond, for property attached, on a failure to deliver the property, after judgment in the attachment suit, against the personal representative of the principal obligor, he having died pending suit.
The- statute ‘authorizing the replevy of property attached, requires a bond executed by the defendant in attachment, or a stranger, payable to the plaintiff, in double the amount of the demand sued for, with condition that if he fail in the action, he or his sureties will return the specific property within thirty days after the judgment. If the property is not delivered, it is the duty of the sheriff, to return the bond forfeited, and execution issues thereon against the obligors for the amount of the judgment and costs.
If any of the property replevied, dies, or is destroyed without fault of the obligors, they may tender the value thereof, in discharge of the bond. R. C. §§ 2964-66-67. The lien of the attachment created by the levy is not im
The seizure of personal property under legal process, transfers it to the custody of the law. The officer taking it, has the right of posession, and a special property in it for the purpose of protecting that possession. He may maintain, trespass, trover or detinue, against a wrong-doer, disturbing his possession. His possession must continue, until the property is disposed of according to the mandate of the process, or in obedience to the order of the court from, which the process issues. If he leaves it in the possession of the defendant in the process, or of a stranger, they become his bailees, and he is answerable for its forthcoming. If he has possession, it is in obedience to the process, and the property is subject to the judgment of the court. When that judgment is rendered, it operates directly on the property. The death of the defendant in the process, if it does not operate its dissolution, does not withdraw the property from the custody of the law, or affect the officer’s right of possession, or duty to keep it safely to answer the process. If the seizure is on mesne process, and the death produces an abatement, when a revivor is had against the proper party, the process is restored to the plight and condition in 'which it was when the abatement occurred.
The object of the statute authorizing the replevy of property attached, is its restoration to the possession of the defendant, so that until final judgment is rendered in the attachment. suit, determining his liability, and the rights of the plaintiff, he may not be deprived of its use, nor subjected to the expense of its keeping pending suit, if judgment is rendered against him. The purpose is not to free the property from its liability to the attachment. The replevy converts the party making it, into a bailee of the property. His death does not absolve him from the obligation and duty of restoring the property, any more than it would if he was the mere receiptor or bailee of the sheriff. Of him surety is required for the pet’formance of the obligation and duty of restoration, that no detriment may occur to the plaintiff, by the extension to him of the privilege of retaining possession, instead of requiring the officer to take and keep it. The sureties on the replevy bond assume equally with the principal obligor, the duty of restoring the property. To enable them to perform this duty, the law invests them with a
The right to an execution on the bond, if it is forfeited, is purely statutory. It is intended to make the judgment in the attachment suit effectual. While it must not be extended to bonds not conforming to the statute, nor to any other state of facts, than those declared in the statute, it must not by intendment or construction be narrowed and circumscribed, so that the purpose of the statute cannot be accomplished. The right depends on a judgment in the attachment suit, to answer which the property replevied is liable. When that judgment is rendered, the duty of delivery arises, and the failure to deliver, entitles the plaintiff to an execution against the living obligors, so that the judgment may be made as effectual, as it would have been, if they had not by the bond withdrawn the property from the custody of the law. The sureties have notice of the attachment suit — they are quasi parties to it. They must take notice of its progress and termination; and the measure of their liability, if the property is not delivered, is the amount of the judgment therein rendered against their principal. All personal actions which may be commenced by attachment, or in which an auxiliary attachment may issue, except for injuries to the
We are aware that in some of our sister States the course of decision, is, that the death of a defendant in attachment, operates its dissolution. Drake on Att. § 433-34. Whether such is the result, is dependent upon the statutes regulating the process. In this State, the death of the defendant, unless attended by the insolvency of his estate, judicially ascertained, does not affect the lien on personal property, or the 1’ight to judgment on which process of execution may issue. Hale v. Cummings, 3 Ala. 398 ; Lamar v. Gunter, 39 Ala. 324; McEachin v. Reid, 40 Ala. 410. It is the insolvency which takes away the right to execution, and transmits to the court of probate exclusive jurisdiction to marshal and distribute the assets of the decedent, and of the debts, and claims chargeable on the assets. Maxwell v. Pike, 2 Green. 8; Willard v. Whitney, 49 Me. 235 ; Miller v. Williams, 30 Verm. 386.
The judgment of the circuit court dissolving the supersedeas, and refusing to quash the execution, is affirmed.