Maryland Casualty Co. v. Parrish

Chichester, J., delivered the opinion of the court. The writ of error awarded in these proceedings brings before this court for review a judgment of the Circuit Court of Goochland county, Virginia, in an action at law in which E. T. Parrish was plaintiff, and is hereafter referred to as plaintiff, and the Maryland Casualty Company, a foreign corporation, was defendant, hereinafter referred to as defendant or the Casualty Company. The judgment was rendered on the 11th day of November, 1926. The plaintiff claimed damages of $20,000.00, to be discharged by the payment of $5,000.00 with interest thereon from the —- day of June, 1923, until paid, and costs, on account of a surety bond executed by the Casualty Company for the Ryland and Brook Lumber Company. As between the plaintiff and the Casualty Company there was no question of disputed fact, a jury was waived, and the question of law submitted to the court for decision. The court decided the law question adversely to the Casualty Company and there being no further defense, judgment was rendered against it in the sum of $20,000.00 to be discharged by the payment of $5,000.00 as heretofore stated. A brief summary of the essential facts is, that on February 21, 1920, E. T. Parrish (plaintiff) was working at the lathe mill of Ryland and Brooks Lumber Company in Goochland county, and while so working he had his right hand cut off. Several months later he [476] instituted suit against the Ryland and Brooks Lumber Company, which was a foreign corporation, by way of attachment. The attachment was levied on property belonging to Ryland and Brooks Lumber Company in Goochland county, but as no bond was given by the plaintiff in suing out his attachment the sheriff did not take possession of the property and it was therefore subject only to the lien of the attachment pursuant to section 6393 of the Code. The Ryland and Brooks Lumber Company, in order to have or retain possession and control of the property free of the lien, executed a forthcoming bond under the first clause of section 6394 of the Code with condition “if the said property above described and attached, as herein set out, shall be forthcoming at such time and place as the court in the cause aforesaid may require, then this obligation shall be void, otherwise, it shall be, and remain, in full force and virtue.” The Casualty Company signed this forthcoming bond as surety on August 19, 1920, the case was continued from that date until November, 1922, chiefly on dilatory pleas filed by Ryland and Brooks Lumber Company. On the 11th day of November, 1922, the Ryland and Brooks Lumber Company made an affidavit of substantial defense to the merits of the plaintiff’s claim. This affidavit was made under section 6385 of the Code of Virginia 1919 (marginal note I), and is in conformity with the provisions of that statute. The plaintiff was served with notice of the filing of the affidavit on the [477] 17th day of November, 1922, but neither the plaintiff nor anyone for him has at any time entered into a bond as required by this section of the Code. The case was then continued on the docket from November, 1922, until June, 1923, on various dilatory questions raised by the Ryland and Brooks Lumber Company, and on the 16th day of that month the cause was tried and a jury found a verdict in favor of the plaintiff against the Ryland and Brooks Lumber Company in the sum of $5,000.00 and the court rendered judgment thereon on the 26th day of April, 1924, which was a year and a half after the affidavit of substantial defense, above referred to, was filed. The plaintiff failing, or being unable to collect on his .judgment, instituted action on the 26th day of September, 1925, against the Maryland Casualty Company as surety on the forthcoming bond heretofore referred to. To this notice of motion the defendant filed a special plea, the purport of which was: That the Ryland and Brooks Lumber Company, in the action of E. T. Parrish against it, had made affidavit that it had a substantial defense to the merits of the plaintiff’s claim, and that such affidavit was otherwise in conformity with section 6385 of the Code of Virginia, 1919, as aforesaid, and that when such affidavit was filed by the defendant, it then became the duty of the plaintiff, or someone for him, to enter into a bond in a penalty of at least double the amount sued for, conditioned that the plaintiff would prosecute his attachment with diligence, and the obligors would pay all costs and damages which might be awarded against the plaintiff, or sus [478] tained by tbe defendant; tbat no such bond bad been entered into by tbe plaintiff as required by said section 6385 of tbe Code of Virginia, 1919, and tbat sucb section provided, unless tbe bond was entered into by tbe plaintiff, tbat tbe attachment should stand ipso facto dismissed within ten days after tbe plaintiff bad received notice of tbe affidavit; tbat said bond required of the plaintiff bad not been entered into within ten days, nor bad it ever been entered into. Tbe plaintiff moved to strike out this special plea, which bad tbe effect of admitting tbe truth of tbe facts alleged therein, and tbe motion to strike out tbe special plea was sustained. Exception was duly taken to tbe action of tbe court in striking out tbe special plea and this exception presents tbe only assignment of error and question for consideration by this court. Tbe real question in tbe case is: Whether tbe forthcoming bond entered into by tbe Ryland and Brooks Lumber Company and tbe Casualty Company as surety was in force at the.time of the rendition of tbe judgment against tbe Casualty Company. Under section 6404 of tbe Code of 1919 (which appears in the margin II), tbe Ryland and Brooks Lumber Company being properly before tbe court, tbe court undoubtedly had jurisdiction to enter a personal judgment against it, even though tbe attachment was-dismissed The court held that tbe attachment was dis [479] missed, and we think properly so held. The statute, 6385, is mandatory that if the bond provided for therein to prosecute the attachment with diligence and to pay all costs and damages which might be awarded against the plaintiff, or sustained by the defendant, is not given within ten days of the service of such notice, the attachment shall stand dismissed ipso facto. The statute does not require construction. Its terms are plain and can have but one meaning. The term ipso facto has had frequent construction by this court and it is only necessary to make reference to some of the cases construing it. See Childrey v. Rady, 77 Va. 518; Owens v. Owens, 78 Va. 116; Vaughan v. Johnson, 77 Va. 300. See also State v. Lansing, 46 Neb. 514, 64 N. W. 1104, 35 L. R. A. 124; Barber v. Haywood, 248 Mo. 280, 154 S. W. 140. There can be no question therefore as to what becomes of the attachment in case of a failure to give the bond required of a plaintiff by section 6385, when the defendant has filed an affidavit of substantial defense and has complied with its other provisions as the Ryland and Brooks Lumber Company did in this ease. It stands “ipso facto” dismissed, that is without any affirmative action of the court. The only question is, did the bond, in this particular case, upon which the defendant became surety, survive the dismissal of the attachment, so as to permit the court to enter a judgment against the Casualty Company. If the bond was given in pursuance to section 6394 (marginal note III) there is no question but that the bond lost its vitality with the attachment. This [480] is practically conceded by counsel for plaintiff who contends that the bond in this case is not a statutory forthcoming bond but a common-law (release) bond. We cannot concur in this view. It is true the bond concluded with the expression: “Whereas the said ftyland and Brooks Lumber Company are desirous of releasing the said property attached as aforesaid, this is but the effect of the execution of the bond which concluded immediately thereafter: “Now, therefore, if the said property above described and attached as. herein set out shall be forthcoming at such time and placeas the court in the cause aforesaid may require,, then this obligation shall be void; otherwise it shall be and remain in full force and virtue.” Section 6394 of the Code provides for the giving of just such a bond to have the property forthcoming at such time and place as the court may require or to release from any attachment the whole of the estate attached. In other words, the defendant in an attachment proceeding, whose property has been attached, under section 6394, independently of whether the plaintiff has given bond in order that the sheriff may take possession of the property or not, may retain possession of the property or have the possession of the property returned to him, by giving bond to have such property forthcoming as required by the statute, or under the-provisions of the same section, the defendant may give bond with condition to perform the judgment of the court and have released from the attachment the whole-of the estate attached. In the instant case the defendant gave bond under the [481] first provision of section 6394, the effect of which was, of course, to release the property from the lien of the attachment upon condition, exactly as provided by the bond in the instant ease, to have the property forthcoming at such time and place as the court may require. It is very clear that the bond in the instant case was strictly a statutory bond and if so there can be no question but that when the attachment was dismissed the bond became inoperative and of no effect. The bond had vitality only as long as the attachment was alive and when the attachment was dismissed the bond went with the attachment. Whatever destroyed the attachment would destroy the bond, as it stood in the place of the property attached. See Burks Pleading and Practice, 2d. ed. 691. In 6 C. J. 464, this is said: “A dissolution of an attachment is a final adjudication of all questions arising in the attachment proceedings, unless an .appeal therefrom is taken in due time, and as regards the property attached, the parties are put^ in the same position as if no attachment had issued. The effect of the dissolution of an attachment is to release the attached property, although no order of dissolution is entered in the court where the action is pending.” And again, 6 C. J. page 466: “Where an attachment is dissolved, the lien on the property siezed thereunder is vacated, and if by judicial sale, a fund has been substituted in place of the property, the lien on the fund is thereby discharged.” In Hilton & Allen v. Consumers’ Can Co., 103 Va. 255, 48 S. E. 899, the defendant executed a release attachment bond, the condition to perform the judgment of the court. The attachment was later declared void: The court held: “If the judgment of the court had been to sustain the attachment, then the bond stood as [482] a security in lieu of the property upon which the attachment had been levied. But the court abated the attachment, the very groundwork of the whole proceeding, and with it the bond fell and became of no effect.” In 6 C. J. 468, it is said: “Where an attachment is vacated, or quashed, a forthcoming delivery, or replevy, bond, given to secure the release of the property, falls with it. Likewise, the dissolution of an attachment releases a deposit of money payable to the depositor on demand.” In Shunack v. Metal Novelty Co. (1911), 84 Conn. 331, 335, 80 Atl. 290, at page 292, the court said: “As the lien of the attachment remains in legal contemplation over the property through the bond, or over the bond, as representing the property, it follows naturally that whatever destroys the attachment, destroys all liability upon the bond.” Section 6406, which gives the court the power, where it would otherwise have jurisdiction of the action against the defendant, and the defendant has appeared generally or been served with process, to retain the cause and proceed to final judgment, certainly does not extend the life of the attachment, or the attachment (forthcoming) bond. On the contrary, the power of the court to act under this section presupposes the prior death of the attachment and the bond, as there would be no necessity for proceeding to final judgment against the defendant independently of the attachment if the attachment was still alive and the bond was still in force. In such a case it would only be necessary to proceed to a sale under the attachment or under the forthcoming bond if the property had theretofore been removed. We are of opinion, therefore, that when the attach [483] ment was dismissed the bond was dismissed also, as it had life only because it was a part of the attachment, and that the court erred in entering judgment against the Casualty Company. In view of this, this court will enter a judgment for the Casualty Company and dismissing the suit against it. Reversed. Footnotes [I] “If a principal defendant shall file in the clerk’s office of the court to which the' attachment is returnable an affidavit of himself, his agent or attorney, that he has a substantial defense to the merits of the plaintiff’s claim, it shall be the duty of the clerk forthwith to notify the plaintiff, his agent or attorney, of that fact, and the attachment shall stand dismissed ipso facto unless within ten days from the service of such notice the plaintiff, or someone for him, shall enter into bond with security approved [477] by such clerk, in a penalty of at least double the amount of the claim sworn to or sued for, with condition that the plaintiff will prosecute his attachment with diligence, and that the obligors will pay all costs and damages which may be awarded against the plaintiff, or sustained by the said de■fendant, or any other person, by reason of suing out the attachment.” [II] “If the principal defendant has not appeared generally, nor been served with process, and the sole ground of jurisdiction of the court is the right to sue out the attachment, and this right be decided against the petitioner, the petition shall be dismissed at the costs of the petitioner; but if the plaintiff’s claim be due at the hearing, and the court would otherwise have jurisdiction of an action against such defendant for the cause set forth in the petition, and said defendant has appeared generally; or been served with process, it shall retain the cause and proceed to final judgment in like manner as if it had been a motion matured for hearing under section six thousand and forty-six.” [III] “Any property levied on or seized as aforesaid, under any attachment, may be retained by or returned to the defendant or other person, in •whose possession it was, on his giving bond, with condition to have the same forthcoming at such time and place as the court may require; or the .principal defendant may, by giving bond with condition to perform the [480] judgment of the court, release from any attachment the whole of the estate-attached. The bond in either case shall be taken by the officer serving the attachment, with surety, payable to the plaintiff, and in a penalty, in the latter case, at least double the amount or value for which the attachment issued, and in the former, either double the same or double the value-of the property retained or returned, at the option of the person giving it.”