Triest v. J. G. Watts & Bro.

Bleckley, Judge. 1. A fi. fa. for the summary enforcement of a lien on specific personalty, such as a saw-mill, may be arrested by a creditor of the defendant, as well as by the defendant himself, and this whether the property is replevied or not. Code, §1991, par. 4. It follows that the judgment upon the verdict deciding the issue must, in some cases, be a special judgment against the property, and cannot be a general judgment against the defendant. There is no provision of law (as there is in attachment proceedings) for one spe [76] cies of judgment in some cases, and for another species in other cases. The result is, that, whether the property be replevied or not, the only judgment that can be rendered in favor of the plaintiff', is a special judgment declaring the property subject; the amount for which it is subject being also distinctly specified. - The amount thus adjudged to the creditor as constituting a lien on the specific property, is the eventual condemnation money. The execution to be issued is for the enforcement of that lien; and, where the property has been replevied, the replevy bond is cumulative security for the discharge of the judgment. The original lien on the property, not being created by the levy, but existing prior to any seizure, Code," §1985, is not extinguished by the replevy bond. As soon as the appropriate special judgment has been entered, the replevy bond is available, and the plaintiff may sue thereon, with or without proceeding to enforce execution against the property, the sureties on the bond having the right to take up and control the execution on paying off the same, thereby discharging their obligation. 2. Until after the appropriate special judgment has been entered against the property, there is no breach of the replevy bond, and, consequently, an action on the bond, not supported by such a judgment, cannot be maintained. 3. A general judgment against the defendant, where only a special judgment could have been legally rendered, is not one that can be used to affect the sureties on the defendant’s replevy bond, and the court will not set it aside at their instance, though it be subject to be set aside at the instance of the defendant himself. 4. After a verdict has been rendered, finding the denial of lien to be untrue, the court will not, at the instance of the sureties on the defendant’s replevy bond, pass an order setting aside the “lien proceedings” and declaring them null and void, for any of the reasons specified in the record in this case. The sureties have no right to be heard on a [77] motion to set aside the proceedings, whatever may be their right to resist any judgment founded thereon, when it is sought to be used against them. Judgment reversed.