Andrews v. Peacock

Decision Date28 June 1929
Docket NumberNo. 868.,868.
Citation146 A. 771
PartiesANDREWS, Sheriff, et al. v. PEACOCK.
CourtRhode Island Supreme Court

Appeal from Superior Court, Providence and Bristol Counties; Hugh B. Baker, Judge.

Petition in equity by Jonathan Andrews, Sheriff, and others, against Alice T. Peacock. From a decree of dismissal, petitioners appeal. Reversed and remanded, with directions.

Peter W. McKiernan, John C. Going, and Ernest L. Shein, all of Providence, for appellants.

Howard B. Gorham and Sayles Gorham, both of Providence, for respondent.

RATHBUN, J. This is a cause in equity, at present in the form of a petition, to enforce a lien imposed by statute on the respondent's real estate by reason of her having become surety on a bond to release from attachment goods which had been attached in an action at law by a deputy of said sheriff. The cause is before us on the petitioners' appeal from a decree of the superior court dismissing the bill.

The petition avers that A. M. Cole, one of the petitioners herein, brought suit against Oakley Bros. in the superior court for the county of Providence for the sum of $3,500; that in said suit certain property of said Oakley Bros. was attached; that Alice T. Peacock, the respondent herein, executed a bond to release said attachment; that said bond contained a description of certain real estate of the respondent and was recorded in the land records of the town of East Providence as provided by chapter 1009, P. L. 1927 28; that on the 4th day of February, 1929, judgment was recovered by said Cole against said Oakley Bros. in the suit in which the attachment was made for the sum of $1,303.40; and that execution issued thereon, and, on March 4, 1929, was returned wholly unsatisfied. This petition, which was thereafter filed, prayed the superior court to fix the amount due under the bond and enforce the lien against the respondent's real estate described in the bond.

Said chapter 1009 amends chapter 351, G. L. 1923, by adding section 29. Said section provides that whenever a sheriff or deputy sheriff shall take a bond to release goods and chattels from attachment on a writ in which the ad damnum exceeds $1,000, the bond shall be in the penal sum of the amount of damages laid in the writ, and in the event an owner of "real estate is accepted as surety said bond shall contain a description of such real estate so that the same may be readily identified in the records of land evidence of the city or town in which it is situate. * * * Before the goods and chattels are released an attested copy of the bond shall be filed with the recorder of deeds * * * and said bond shall be a lien upon the real estate described therein until the action in which the attachment was made is disposed of, or said bond is cancelled by the plaintiff or his attorney of record, or by order of a court of competent jurisdiction."

The cause was heard below on respondent's motion to dismiss the petition. The motion was granted for the reason that, in the opinion of the trial justice, the petitioners had a plain and adequate remedy at law.

We are of the opinion that the remedy at law is inadequate. The respondent contends that the petitioners should sue on the bond and attach the real estate and finally obtain an execution to be levied upon the same. It is admitted that since the filing of...

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1 cases
  • Andrews v. Mollica, 111.
    • United States
    • United States State Supreme Court of Rhode Island
    • June 28, 1933
    ...paid, this bill was brought to establish a lien upon the real estate of the sureties described in the bond. Andrews, Sheriff, v. Peacock, 50 R. I. 260, 146 A. 771. Respondent Mollica and wife each answered and averred that Calabro asked them to sign a bond for $200 and that the mark of Mari......

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