Overland-Texarkana Co. v. Bickley

CARVER, J. This is a suit on forthcoming bond given to secure the release of an automobile sequestered in a previous suit between this plaintiff and Biekley, the principal on the bond, wherein the owner.ship of the automobile was in contest. The automobile was finally adjudged to belong to plaintiff but over two years had elapsed from the time of the seizure. Pending the litigation, Biekley had used the automobile which, at its termination, had much depreciated in value. After trying to obtain a settlement with Biekley, plaintiff’s attorney obtained a writ of sequestration under which the sheriff placed him in possession of the car. In his petition for this writ, plaintiff declared that he reserved his rights on the bond. Plaintiff’s attorney had the car appraised by an automobile dealer who appraised it at $200.00. As a further test of value, he then had it sold at public auction, after advertisement, when it brought $100.00. He gave written notice of this appraisement and of the proposed auction sale to the principal and securities on the bond, inviting them to bid, and stating that the price would be credited on the bond. In this suit plaintiff asks for judgment for $995.00 the amount of the bond less $100.00, the price obtained at the auction sale. Defendants plead— 1. No cause of action. 2. Estoppel. 3. Denial that the bond was broken. 1. The exception of no cause or right of action is based on the claim that a cause of action arises only when after final judgment execution issues and is returned unsatisfied, and that in this' case the judgment only decreed ownership and possession, the writ was for possession and the return shows full and complete satisfaction. [700] No authority is cited in support of this proposition and it does not seem to us that the return of a damaged and almost valueless car is satisfaction of a judgment for a good one. The fact that the defendants were not notified of the application for the writ of possession containing a reservation of plaintiff’s right on the bond, is immaterial in our opinion. They do not claim to have been prejudiced thereby. Moreover they were notified of the proposed sale, thereby being afforded an opportunity to protect themselves. Furthermore, they had the' right to show, if they could that the car was worth more than it brought at that sale. 2. The plea of estoppel is not urged in defendants’ brief and we might therefore be warranted in considering it abandoned. It is -based on plaintiff’s action in obtaining the writ of possession. We do not think the plea well founded. Plaintiff had the right and it was perhaps its duty to save what there was left of the car and its doing so injured to the benefit of the sureties instead of injury to them. 3.