Hughesville Mercantile Co. v. McGruder

BROADDUS, P. J. This is an appeal from a judgment of tbe court overruling plaintiff’s motion for judgment on a forthcoming bond. Tbe plaintiff commenced this suit before a justice of tbe peace on a promissory note executed by defendants Gillispie Mc-Gruder and bis wife Annie McGruder, and sued out a writ of attachment against tbe property of defendants. It was alleged by plaintiff that tbe consideration for [389] the execution of the note was for necessaries for the defendant’s family. The case was taken by change of venue to another justice and had a somewhat varied career, but finally resulted in a judgment sustaining the attachment, and a judgment on the note. When the constable séized the property of the defendants, they retained its possession by giving a forthcoming bond. During the pendency of the procedings,. the defendant Annie McGruder filed a motion to quashi the attachment in so far as it pertained to her property, which was sustained. And defendant Coats as surety on the forthcoming bond filed a motion before a justice to be released from the forthcoming bond in so far as the property of defendant Annie was concerned, which was also sustained by the justice. And on the same day the justice rendered judgment on the forthcoming bond against the defendants Gillispie and Annie Mc-Gruder and defendant Coats for the sum of $250, and twenty per .cent damages in the sum of $50. It was from this judgment that the defendant Annie and Coats appealed, the defendant Gillispie not appealing. We shall not attempt to detail the numerous steps and counter steps taken by the parties while the case was pending before the justice, but endeavor to arrive at the real issues which were presented to the circuit court on the appeal. The controversy seems to be the right of plaintiff to a judgment on the forthcoming bond in a summary proceeding by motion. It is contended that the bond is not such as is required by section 389, Revised Statutes 1899, one provision of which is that the bond shall be given to the officer his successor or his assigns. The bond in controversy is not so made, but is merely made to the constable. The omission is an important one, the obligation is only to the constable and not to his successor or assigns, therefore not in compliance with the statute. It is true it is assignable as other obli [390] gations and the assignee would have the right to maintain an action thereon at law but not by motion. There is another difficulty in the way of plaintiff’s right to recover, admitting that the bond is such as the statute requires. Section 419 provides that where the officer makes a return that none or a part of the attached property cannot be found, and that the execution is not fully satisfied, the court or justice shall direct the officer to assign to the plaintiff the bond taken by him for the forthcoming of the property attached; “and such court or justice may, upon motion, render judgment in favor of plaintiff . . . against the obligors of the bond, for the value of such property,” etc. The justice made no order directing the constable to assign the bond to the plaintiff, consequently plaintiff was not entitled to the remedy against defendants by motion. The constable stated in his evidence that he made the assignment at the request of plaintiff’s attorney. There are other questions raised by the defendants in support of the judgment of the court, but we are satisfied to discuss only those that are conclusive of the case. Affirmed. All concur.