Cobb v. Thompson

• Citation: 6 So. 373,87 Ala. 381
• Parties: COBB ET AL. v. THOMPSON.
• Decision Date: 20 June 1889
• Court: Supreme Court of Alabama

6 So. 373

87 Ala. 381

COBB ET AL. v. THOMPSON.

Supreme Court of Alabama

June 20, 1889

Appeal from city court of Anniston; W. F. JOHNSON, Judge.

An attachment was issued by a justice of the peace at the suit of C. A. Thompson, against one Percy Olmstead, and was levied by the constable on certain personal property of said Olmstead. After this levy the defendant in attachment executed said replevin bond, with Cobb and others, the petitioners, for sureties thereon. This said bond was conditioned that the obligor and his sureties would return the property levied on under the writ of attachment to the constable within 20 days after the judgment. After judgment was rendered by the justice of the peace in the attachment suit, and a failure of defendant to return the property levied on to the constable, the constable returned the bond "Forfeited," and at the request of plaintiff the justice issued a summary execution against the obligors in said bond. The petitioners filed their petition for writs of certiorari and supersedeas, and prayed that the execution might be quashed, on the ground that it was rendered on a defective bond, and one which was not conditioned as required by the statute. The plaintiff demurred to the petition, and moved to dismiss the case, on the ground that an appeal was the proper remedy, and that the writ of certiorari was issued on ex parte affidavits. The court overruled both the demurrer and the motion, but refused to quash the execution, and rendered judgment for plaintiff. Petitioners appeal.

Macdonald & Williams, for appellants.

Cassady & Blackwell, for appellee.

SOMERVILLE J.

The purpose of the petition is to supersede an execution summarily issued on a replevy or forthcoming bond executed by a defendant and his sureties, in an attachment proceeding before a justice of the peace, and returned by a constable as forfeited. Code 1886, §§ 3334-3341. The bond bore date October 28, 1887, and was declared forfeited December 12 1887, on the ground that the replevied property had not been returned to the constable according to the condition of the bond. If the undertaking is not a statutory bond,-that is, if it does not substantially conform to the requirements of the statute,-and its defects are not cured under the provisions of section 3357 of the present Code, the summary remedies given by the statute for the enforcement of its obligations will not lie. The instrument will be good only as a common-law bond, and must be sued on as such.

A fatal defect in the undertaking, so far as concerns its conformity to the statute, is the time when the replevied property is to be returned to the constable, which is not only material, but of substance, and not mere form. The Code provides, where personal property, levied on under a writ of attachment issuing from a justice's court, is replevied, it "must be delivered to the constable within ten days after judgment against the defendant, unless an appeal is prosecuted from the judgment; and on failure thereof the constable must indorse the bond forfeited, upon which execution must issue against the obligors therein." Code 1886, § 3341. Where the levy is under execution, the condition of the bond is "to have the property forthcoming at twelve...