Wilcox & Gibbs G. Co. v. Piedmont Lumber Co.

HARALSON, J. An execution, issued on a judgment recovered by appellants against A. 0. Harwell for the sum of $812.85, and costs of suit, having been levied on a quantity of mixed lumber, an office-building and other personal property, appellee interposed a claim, and gave bond with sureties, conditioned as provided by section 3004 of the Code; whereupon the property was delivered to the claimant. On a trial of the right of property, a verdict was returned, and judgment rendered against the claimant. The value of the property levied on was assessed by the jury as follows: “65,997 feet of rough lumber, at $8.00 per thousand, $527.97, and 12,114 feet of' dressed lumber, at $12.50 per thousand, $151.42, and 22,500 shingles, at $2.00 per thousand, $45.00, and 3,600 laths, at $1.75, $63.00, and thirteen window sash, at $1.40, $18,00, 3 doors, at $1.25, $3.75; one office, at $40.00, and one lumber shed, at $10.00, making the total value of the property $859.34. Before the expiration of thirty days after the rendition of this judgment, the claimant delivered to the sheriff twenty-eight thousand, three hundred and seventy-nine feet of rough lumber, seven thousand one hundred and eighty-one feet of dressed lumber, and the office building. The balance of the property not having been delivered, the sheriff endorsed the bond, forfeited, and thereupon, the clerk issued an execution against the claimant and 'the sureties on the bond for $859.34, the total assessed value of the property. The property delivered was sold by the sheriff and purchased by the claimant, for $50.00, which amount was credited on the execution. The claimant seeks by this proceeding, to supersede and quash the execution, claiming that it should be credited with $356.79, as the assessed value of the lumber delivered. The court ordered the execution credited rvitli the value of the property turned over to the sheriff, as assessed by the jury. Section 3008 of the Code provides: “If judgment is rendered against the claimant, and he fails to deliver the property to the sheriff within thirty days thereafter, to satisfy the plaintiff’s execution, the sheriff must endorse the bond forfeited; and thereupon the clerk must issue execution against all the obligors thereon, for the amount of the plaintiff’s judgment, if that be less than the value of the property as assessed by the jury, or for the amount of such assessed value, if less than the amount of the judgment, and also for [283] tbe damages, if any were assessed, and tbe costs of tbe trial of tbe right of property.” The condition of tbe bond is to have tbe property — all tbe property levied on and claimed — forthcoming for the satisfaction of tbe plaintiff’s judgment if found liable therefor; tbe delivery of only a part is not performance of tbe condition of tbe bond. Tbe claimant having failed to deliver all tbe property within tbe prescribed time, it became tbe duty of tbe sheriff to endorse tbe bond forfeited. When so endorsed and returned, tbe statute makes it tbe duty of tbe clerk to issue execution against all' tbe .bondsmen for tbe amount of tbe original recovery against the defendant in execution, or for the assessed value of tbe property, as tbe case may be. Tbe statutory judgment, fixed by such endorsement and return of tbe bond, can be prevented only by full compliance with this condition. In Munter v. Lienkauff, 78 Ala. 546, it is said, that when tbe liability becomes fixed by statutory judgment, “it then becomes a question of payment vel non, as in case of any other debt reduced to judgment.” Tbe question then is, to what extent does tbe delivery of a part of tbe property levied on operate as payment in exoneration of tbe bondsmen? In Dunlap v. Clements, 18 Ala. 778, tbe bond was given for tbe forthcoming of a stock of goods levied on by attachment. Tbe plaintiff in tbe attachment caused tbe major part of tbe goods to be seized, under a subsequent attachment against one of tbe sureties on tbe forthcoming bond. Tbe goods not seized, were delivered to tbe sheriff. While it was held, that tbe act of tbe plaintiff, having prevented compliance with tbe condition of tbe bond was a discharge of tbe obli-gors, to tbe extent of tbe property seized under tbe second attachment, it was conceded, that tbe failure to deliver a part of tbe property, when not caused by the plaintiff, would amount to a forfeiture, and tbe bond would have tbe effect of a judgment, upon which execution could be issued for tbe amount recovered in tbe first attachment suit, and tbe bondsmen “would have been liable, for all which tbe goods delivered were not sufficient to satisfy.” It is said, “It is true, as contended at the bar, that if tbe bond is returned forfeited for tbe noü-delivery of only a small part of tbe property replevied, and there should be a large amount of tbe judgment remaining, after applying what was delivered, tbe obli-gors would be bound for it all, at law.” Tbe principle is analogous. The case of Munter v. Lienkauff, supra, is similar to tbe present, except that tbe levy in that case was upon a stock of merchandise. After stating tbe prindples here-inabove stated, it is said, “Applying these principles, we [284] bold, that, when there was a failure to return all the goods levied on, the condition of the bond was broken, and the sheriff rightly returned it forfeited. When so returned, it became a statutory judgment against all the bondsmen for the amount of the original recovery against Munter and Brother, including interest thereon, but not to exceed eight hundred dollars, the ascertained value of the merchandise.” Also observing, that when the liability of the parties became fixed by a statutory judgment, it became a question of payment vel non, the conclusion is thus expressed, "Partial delivery, not being a compliance with the requirements of the bond, any thing realized from the goods delivered, whether of the stock jn’eviously levied on or not, is only payment pro tanto. It does not heal the forfeiture, nor vacate tli e statutory judgment.” But counsel insist that the decision in the case, — the levy being on a stock of goods which could not be separately assessed, from the nature of the articles, — is not decisive of the present case, in which the property was separately valued. The chattels levied on were separately described and valued, but, excepting the office, the partial delivery was of a specific number of feet of each, the rough and dressed lumber, which consisted of many pieces no more susceptible of separate description and valuation than the articles composing a stock of merchandise. The valuation of each was one and entire, though ascertained by a calculation based on a valuation jDer one thousand feet. As to the lumber delivered, the case comes directly within the rule declared in Munter v. Leinkauff, supra. True, some stress was placed on the fact that the valuation of the goods was one and entire; and the court declined to decide, whether, if the subject of the levy had been distinct chattels, susceptible of separate description and valuation, and their values separately assessed by the jury, the forfeiture, if there were a partial delivery, should not also be partial, and the money recovery only for the separately valued chattels which were not delivered. This question, especially as to the delivery of the office, now comes directly for decision. The fundamental principle on which the rule rests, is that when the' bond is rightly endorsed and returned forfeited, it is the right of the plaintiff, under the statute, to have execution for the amount of his judgment, or of the assessed value of all of the property, if such value be less than the judgment. The rule works no hardship. ' The claimant, having obtained possession of the property by giving the claim bond, becomes the legal custodian, and it is his duty to safely keep it, to be re [285] turned if found liable to plaintiffs execution. Tbe right of tbe plaintiff is, if tbe property be found liable, to have all of it sold, if necessary, to satisfy his judgment. If a partial delivery is held to be a payment to tire amount of the assessed value of the part delivered, this right of the plaintiff is defeated by the wrongful act of the claimant, in failing to comply with the condition of hif3 bond, which is intended for the security of plaintiff. As tersely observed by Strong, J., in Hill v. Robinson, 44 Penn. St. 380, “The claimant has interfered with the process of the creditors, and compelled them to let go of goods which had been seized to satisfy the debt due them. This she has done without just cause, as the verdict in the inter-pleader issue establishes. She can not now select such portion of the goods as she chooses, and turn the refuse over to the creditors, and insist that they shall accept them in partial satisfaction.” So, also, when distinct chattels, susceptible of distinct valuation, are levied on, and separately valued by the jury, the claimant can not select such of the chattels’ as he considers under-valued, and turn over to the plaintiff those which he regards as overvalued by the jury, as payment pro tanto. Applying the foregoing principles, we hold that, in such case, the bondsmen are only entitled to a credit on the execution of the amount realized by the sheriff, upon a sale of the part of the property delivered. -Lee v. Moore, 12 Mo. 458. The demurrer to the petition should have been sustained. This opinion was prepared by the late Justice Clopton and adopted by the court. Reversed and judgment rendered sustaining the demurrer.