The appellant has filed a motion to be allowed to give the required bond and receive from the sheriff of Chickasaw County the property involved in this suit, the same having been seized under a writ of sequestration in an attachment in chancery and neither of the parties having heretofore given bond therefor.
Section 414, Code of 1930, dealing with the right of litigants to enter into bond to receive property seized under a writ of sequestration provides, among other things, that: "If the defendant do not give bond to retain the property within five days from its seizure, and the complainant do not do so within five days after defendant's failure, either party may, before sale of the property, give the required bond and receive the property, or after sale may give such bond and receive the proceeds." There was a decree rendered in favor of the complainant, the Linn Motor Company, whereby the automobile in controversy, which is now in the hands of the sheriff of the county but stored with said motor company, appellee herein, was ordered to be sold for the payment of its mechanic's lien thereon; and before such sale could be made there was an appeal with supersedeas taken by the Universal Credit Company to this court, which is now pending.
It appears from the *Page 574 showing made on this motion of the appellant to be allowed to give bond and receive the property that the appellant has offered to give the necessary security but that the sheriff has ignored all inquiries as to whether he would permit the bond to be given and as to the amount of bond that he would require in that behalf; that the amount of bond offered to be made was the sum of $750 for the release of the automobile, which was seized under the writ of sequestration on a bond of the complainant in the sum of $500 given pursuant to Section 410, Code of 1930, requiring that: "Before the writ of sequestration shall issue in any case, the complainant shall enter into bond with sufficient sureties, payable to the defendant, in double the value of the property proposed to be seized, to be fixed by the clerk from affidavit, or such evidence as may satisfy him. . . ." It also appears from the answer to said motion, submitted by the counsel of record for the appellee Linn Motor Company, that the said officer is now willing to surrender said automobile to the appellant upon the execution of a bond in an amount sufficient to protect the rights of all of the parties, including any expenses and storage charges which may be properly and legally chargeable against said property, and the said officer submits that a bond in the sum of $1,000 would be sufficient for said purpose.
The motion is therefore sustained, and the appellant is held to be entitled to execute a good and sufficient bond in the said sum of $1,000 conditioned according to law for the protection of the rights of the appellee, and which said bond is also to serve as security for the payment of any storage charges and other expenses which may be finally held to be proper charges against said automobile, in the event that the said property should not be forthcoming to abide any final decree herein, or should in the meantime become so depreciated in value as not to bring a sufficient price for said purpose if and when sold or held to be subject to sale, to satisfy the lien claimed by the said Linn Motor Company under the final order of the *Page 575 court following the hearing of the appeal herein.
Upon the execution of such bond, the appellant shall be entitled to receive the said automobile from the sheriff pending the final determination of this cause. Motion sustained.
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