Dillard v. Nelson

• Decision Date: 24 March 1906
• Parties: DILLARD et al. v. NELSON et al.
• Court: Arkansas Supreme Court

95 S.W. 460

DILLARD et al. v. NELSON et al.

Supreme Court of Arkansas.

March 24, 1906.

Appeal from Circuit Court, Clark County; Joel D. Conway, Judge.

Petition by T. J. Dillard and others against W. E. Nelson and others for writ of certiorari. Writ denied, and petitioners appeal. Reversed.

Hardage & Wilson and John H. Crawford, for appellants.

McCULLOCH, J.

Appellants, in an action of replevin brought by J. A. Frizzell against John Luzader, before a justice of the peace of Clark county, to recover possession of a mule, executed a bond to the plaintiff in the following form (omitting the caption): "We undertake to pay to the plaintiff such sums, not exceeding $200.00, as may be adjudged to him in the action, or that the property attached, to wit, one mule attached herein, shall be forthcoming and subject to the order of the court for the satisfaction of such judgment as may be rendered in the action, whichever shall be directed by the court." A trial of said case before another justice of the peace on change of venue resulted in a verdict for the plaintiff for the recovery of the mule sued for, or its value, fixed at $75, and cost of the action and judgment was rendered accordingly against the defendant Luzader and appellants as sureties on said bond. Luzader delivered the mule to the plaintiff, and the justice of the peace issued execution upon the judgment for costs, which were taxed in the sum of $52.35. Appellants thereupon presented to the circuit court their petition, setting forth the foregoing facts, for writ of certiorari to quash the judgment against them as sureties on said bond, which being refused, they appealed to this court.

The basis of their contention is that the bond is not in form prescribed by the statute as a delivery bond in replevin, that it was enforceable only as a common-law obligation, and that a summary judgment thereon was not authorized. They assert also that all liability as a common-law obligation has been discharged by a return of the property as adjudged. The statute provides that in replevin the officer holding the writ may return the property to the defendant upon his giving bond, with security, "to the effect that the defendant shall perform the judgment of the court in the action." Kirby's Dig. § 6863. The bond executed by appellants was not an obligation to "perform the judgment of the court in the action." The undertaking was to "pay to the plaintiff such sums, not exceeding $200, as may be adjudged to...