Cooper & Co. v. Davis

CLOPTON, J. This proceeding is a motion to quash an execution issued against the makers of a claim bond, on the ground that the bond was improperly indorsed and returned ‘ ‘forfeited.” The motion was submitted to the City Court on an agreed statement of facts, which are: An execution in favor of appellants was levied by the constable on certain property. Mrs. L. A. Davis made an affidavit, that she had [570] a just title to tbe property, and a claim bond, wbicb was accepted by tbe constable. On a trial of tbe claim suit before a justice of tbe peace, tbe property was found subject to plaintiffs’ judgment. Tbe makers of tbe bond failing to bave it forthcoming witbin ten days thereafter, tbe constable indorsed tbe bond “forfeited,” and returned tbe same to tbe justice, who thereupon issued execution against all tbe obligors in tbe bond. After tbe rendition of tbe judgment condemning the property to the satisfaction of plaintiffs’ judgment, but before the claim bond was indorsed and returned “forfeited,” a stranger to plaintiffs’ execution, and to tbe claim proceedings, made an affidavit of claim and a claim bond, under tbe statute for tbe trial of tbe right of property, wbicb were accepted by tbe constable. No question being raised in regard to tbe regularity of tbe judgment rendered by tbe justice on tbe trial of tbe right of property, which may be amended if necessary, and as tbe parties agreed that tbe property was found subject, we shall consider the questions raised and argued as they were presented and decided by tbe City Court, on tbe agreed statement of facts. Tbe condition of tbe claim bond was, that tbe makers should bave tbe property forthcoming for tbe satisfaction of plaintiffs’ judgment, if found liable therefor. Tbe judgment ■ finding tbe property liable fixed and rendered absolute tbe obligation to bave it forthcoming. On failure to do so, plaintiffs’ unquestioned right was to bave tbe bond indorsed and returned “forfeited,” and to bave an execution against tbe obligors. Tbe judgment of condemnation was conclusive, and estopped them from denying that tbe property was subject to tbe execution. If the constable bad refused or failed to indorse and return tbe bond as required by tbe statute, a mandamus would bave been awarded, on proper application, to compel him to perform such duty. Tbe facts clearly distinguish this case from Hobbie v. Roswald, 85 Ala. 73, and bring it witbin tbe principle settled in Cooper v. Peck, 22 Ala. 406. In tbe first case, tbe claimant, by a replevy bond, obtained possession of tbe property levied on under an attachment against a third person. On tbe next day they interposed a claim under tbe statute, by making tbe requisite affidavit and bond, wbicb was accepted and approved by tbe sheriff, and returned by him to the court. It is said, that tbe acceptance of affidavit of claim and approval of tbe claim bond “estopped tbe claim [571] ants from denying that they acquired the possession and held it under the claim bond. If the sheriff had been placed in possession of the property, he would have retained it only long enough to have approved the bond, when if would have passed instantly to the claimants.” The obligation to deliver the property to the sheriff, under the replevy bond, had not been rendered absolute by a judgment in favor of the plaintiff in the attachment suit. The effect of accepting and approving the claim bond was, to transfer possession under the replevy bond from the claimants, to themselves under the claim bond, with the assent of the sheriff, the makers of both bonds being the same persons. Manual delivery of the property to the sheriff was considered an empty form and unsubstantial ceremony, which the law does not regard. In the second case, property which had been attached, was replevied by a stranger to the attachment. Judgment having been rendered against the defendant in attachment, the sheriff demanded the property of the makers of the replevy bond, who refused to deliver, and tendered to the sheriff an affidavit and bond for the trial of the right of property, which he refused to accept, and indorsed and returned the replevy bond “forfeited.” The makers of the bond sought to supersede the execution issued thereon. It was held, that the condition of a replevy bond can only be complied with, after judgment against the defendant in attachment, by a delivery of the property to the sheriff on his demand. The supersedeas was dismissed. The same observation applies to the claim bond, upon which the execution now sought to be quashed was issued. The constable delivered possession of the property levied on to Mrs. Davis, on her making the affidavit and bond for the trial of the right of property. After judgment finding the property liable, the condition of the bond can only be complied with by having it forthcoming within ten days thereafter, for the satisfaction of plaintiffs’ judgment. The constable was unauthorized to defeat plaintiffs’ right to an execution, by accepting an affidavit of claim and a claim bond from another party, while the property was withheld from his possession. Rhodes v. Smith, 66 Ala. 174; Woolfolk v. Ingraham, 53 Ala. 11. Reversed and remanded..