Burton v. Cefalu

ANDERSON, J.' — It has been long settled by this court that an officer, who seizes property under a writ of detinue, and who fails to turn it over to the defendant, after the failure of the plaintiff to give a forthcoming bond, as required by the statute (sections 3780 and 6051 of the Code of 1907), is liable upon his official bond for his official misfeasance for damages resulting from said misconduct. Nor can he justify his misconduct or mitigate the damages by showing that the property belonged to another, or that it was subsequently adjudged to be that of the plaintiff in the suit. The statute is mandatory, and he could not be liable to the plaintiff, who subsequently recovered a judgment [364] against the defendant, for complying therewith. If the plaintiff wished to retain the possession he could give the forthcoming bond; but, failing to do so, the defendant was entitled to same, and it was not incumbent upon the officer to retain the property for the protection of the plaintiff or any one else, but it was his plain .duty to deliver it to the defendant. — Elrod v. Hamner, 120 Ala. 463, 24 South. 882, 74 Am. St. Rep. 43; Thorn v. Kemp, 98 Ala. 417, 13 South. 749; Gay v. Burgess, 59 Ala. 575. It is insisted by appellant that the plaintiff had the right to maintain this action only between the misfeasance and the delivery to the plaintiff, in satisfaction of his judgment against the defendant; that after the officer delivered the property to the plaintiff in response to his judgment against the defendant (the plaintiff here) the wrong was tolled. The boohs do not seem to make this distinction, as the plaintiff’s right of action arose when the officer failed to comply Avith the statute and continued until barred by the statute of limitations. Indeed, some of the pleas in the Elrod Case, supra, not only set up that the property belonged to the plaintiff, Hollman, but that it was so adjudged and determined in said suit; and the effect' of the ruling was that the plaintiff rightfully recovered the value of the property at the time of the seizure. The judgment of the city court is affirmed. Affirmed. McClellan, Mayfield, and Sayre, JJ., concur.