41 S.E. 305 (S.C. 1902), Polite v. Bero

• Citation: 63 S.C. 209,41 S.E. 305
• Date: 27 March 1902
• Docket Number: .
• Parties: POLITE v. BERO et al.
• Court: South Carolina Supreme Court

Page 305

41 S.E. 305 (S.C. 1902)

63 S.C. 209

POLITE

v.

BERO et al.

Supreme Court of South Carolina

March 27, 1902

Appeal from common pleas circuit court of Beaufort county; Watts, Judge.

Action by Diana Polite and others against C. Bero and Charles Chin Sang. Judgment for plaintiff. Defendants appeal. Affirmed.

Wm. Elliott, Jr., for appellants. Thos. Talbird, for respondents.

MCIVER, C.J.

The sole question made by this appeal is whether an undertaking executed by two sureties, under section 232 of the Code of Procedure, in proceedings for claim and delivery of personal property, is fatally defective because not signed by the parties for whom the two sureties became bound for the delivery of the personal property seized to the plaintiffs herein, if such delivery be adjudged, and for the payment to them of such sum as may, for any cause, be recovered against the defendants in this action. The question turns upon the provisions of section 232 of the Code, which reads as follows: "At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant." This section contains no language requiring that the undertaking shall be "executed by" any other persons than the two or more sufficient sureties required, and furthermore provides that "they" (that is, the two or more sureties) are bound in double the value of the property for the delivery thereto to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant. The cases of Bank v. Stelling, 31 S.C. 369, 9 S.E. 1028, followed by case of Wagner v. Booker, 31 S.C. 375, 9 S.E. 1055, and Booker v. Smith, 38 S.C. 235, 16 S.E. 774, are relied upon by the appellants to sustain a contrary

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view. But those cases are not applicable here, for in those cases the court was construing a totally different section of the Code, couched in very different language, and relating to an entirely different subject. Then the section under consideration was section 251 of the Code, relating to the subject of...