McCoy & Son v. Atkins

TIart, J., (after stating the facts). It is conceded that the sole issue raised by the appeal is whether or not the circuit court erred in rendering judgment against W. W. Mitchell, the surety in the replevin bond of the defendant, for the sum of $225, which the proof showed -to be the value of the mortgaged property, instead of for $1,000 as named in the 'bond. It is insisted by counsel for the plaintiffs that W. W. Mitchell, the surety on the delivery bond given by the defendant in the replevin suit, is liable for the full amount named in the bond instead of the value of the property, and that the court erred in only rendering judgment against Mitchell for the value of the property as found by the jury. We cannot agree with counsel in this contention. The liability of Mitchell as surety on the delivery bond in the replevin action is fixed by the terms and conditions of his bond. The terms of a delivery bond in a replevin action are fixed by statute, and the bond signed by Mitchell in this action is in conformity with the statute. Section 8655 of Crawford & Moses’ Digest reads as follows: “In all actions for the recovery of personal property, where the defendant has given a delivery bond as now provided for by § 8649, the court or jury trying the cause may not only render judgment against the defendant for the recovery of the property, or its value, together with all damages sustained by the detention thereof, but ‘also, upon motion of the plaintiff, render judgment against the sureties upon his said delivery bond for the value of the property, and also damages as aforesaid, as the same may be found and determined by the court or jury trying the case.” Mitchell, by the terms of his bond, bound himself unto the plaintiffs in the sum of $1,000 that the defendant, A. Atkins, should perform the judgment of the court. Under the provisions of § 8655, relating to actions in replevin, it was the duty of the court to render judgment against the defendant for the recovery of the property or its value, and also, upon motion of the plaintiff, to render judgment against the surety on the delivery bond for the value of the property and the damages sustained by the detention thereof. In the case at bar no damages were proved, and the value of the property was fixed by the jury, upon the evidence introduced, at $225. The cir-cult court correctly rendered judgment in favor of the plaintiffs against Mitchell for this amount. It is true that the jury also found for the plaintiffs against the defendant in the sum of $1,284.23 for their debt, but the surety on the delivery bond was not concerned with the amount of the mortgage debt owed by the defendant to the plaintiffs. This, under our statute, is only done for the benefit of the defendant in order that he may pay the judgment for the balance due on his mortgage indebtedness and thereby prevent a foreclosure of the mortgage. Crawford & Moses’ Digest, § 7410. This part of the .judgment, however, does not affect the surety' on the delivery bond. Judgment can only be' rendered against him for the value of the property in case it is not returned by the defendant as provided in the judgment. Spear v. Ark. N. B., 111 Ark. 29, 163 S. W. 568; Bowser Furniture Co. v. Johnson, 117 Ark. 496, 175 S. W. 516; Barnett Bros. v. Henry, 133 Ark. 531, 202 S. W. 707; and Jones v. Keebey, 159 Ark. 586, 252 S. W. 551. It follows that the judgment will be affirmed.