Duncan v. Owens

• Decision Date: 23 October 1886
• Citation: 1 S.W. 698
• Parties: DUNCAN, Trustee, <I>v.</I> OWENS.
• Court: Arkansas Supreme Court

1 S.W. 698

DUNCAN, Trustee,v.

OWENS.

Supreme Court of Arkansas.

October 23, 1886.

Appeal from Nevada county.

Action on bond in a suit in replevin. Demurrer to complaint. Judgment for defendants. Plaintiff appeals.

Smoote, McRae & Hinton, for appellant.

COCKRILL, C. J.

The appellant, as the trustee named in a chattel mortgage with power of sale, sued out an order of delivery, with a capias clause, in an action of replevin against Owens, under section 5574 of Mansfield's Revised Statutes. Owens was arrested, and afterwards released, upon executing a bond, with sureties, conditioned as required by section 5577, Id. He appeared to the action of replevin, and made defense, but judgment was rendered in Duncan's favor for the recovery of the mortgaged property or its value, in the usual form in such cases. Execution for the return of the property, or collection of the damages assessed, was sued out, and returned unsatisfied as to both. Duncan, the plaintiff in the replevin suit, then brought this action upon the bond executed for Owen's release, alleging in his complaint the facts here set forth. A demurrer was interposed to the complaint, setting out—First, that there was a defect of parties plaintiff; and, second, that the complaint did not state facts sufficient to constitute a cause of action. The court overruled the demurrer as to the second ground, but sustained it as to the first, and, as the plaintiff declined to amend, dismissed the action, and the plaintiff appealed. The questions arising upon both branches of the demurrer are argued by counsel, but it is conceded that the first is unimportant, and the judgment of the court is right if the second ground of demurrer is well taken. The question thus presented is, what is the extent of the liability of the sureties on the bond executed to a sheriff for the release of a defendant arrested upon a capias in replevin?

As originally adopted, the Code of Civil Procedure contained no provision for the arrest of a defendant in an action of replevin. Arrest in civil actions, for debt contracted in fraud, and for the protection of sureties under given circumstances, was authorized, and the procedure was governed by the provisions of the chapter under the title of "Arrest and Bail—Civil." When property claimed in replevin had been disposed of or concealed so as to prevent a delivery, the court was authorized to compel the attendance of the defendant, examine him upon oath, and punish him, as in case of contempt for a disobedience of its orders. Gantt, Dig. § 5046. In 1875 this provision was repealed, and the law now in force as to arrest and release of a defendant in replevin was enacted. Upon the filing of the affidavit designated by the act, the clerk is directed to add a clause to the order of delivery "commanding the sheriff * * * that if the property mentioned in the order cannot be had, to take the body of the defendant, so that he appear at the return-day to answer the premises." Section 5574, Mansf. Dig. Then follow these two sections:

"Sec. 5576. If the property described in the order be removed or concealed, so that the officer cannot make delivery thereof, he shall [when the order contains a capias clause] arrest the body of the defendant, and hold him in custody, in the same manner as in a capias ad respondendum in a personal action, until he shall execute the bond prescribed in the next section, or be otherwise legally discharged.

"Sec. 5577. The defendant shall be entitled to be discharged from such arrest at any time before final judgment had in the cause, upon executing to the officer who shall have made such arrest, with the addition of his name of office, a bond in a penalty of at least double the value of the property described, as sworn to in the affidavit, with such security as shall be approved by such officer, conditioned that such defendant shall abide the order and judgment of the court in such action, and that he will cause special bail to be put in, if the same shall be required."

If we look to no other provision of the law than that which prescribes the condition of the bond to be that the defendant shall abide the order and judgment of the court, then the bond must be adjudged an unconditional promise to perform whatever judgment the court may render in the action. Jackson v. State, 30 Kan. 88; S. C. 1 Pac. Rep. 317. But when viewed in the light of other provisions of the same act, and the other acts upon the same subject, can that be said to be the obligation the sureties have assumed? The object of the defendant's arrest is declared in section 5574, supra, to be to compel his attendance at the return-day of the order, and the capias is made returnable as other orders of arrest in civil cases. It is also provided that the defendant, when arrested, shall be held as upon a capias ad respondendum, and may be required, after his release upon bond to the sheriff, to enter into special bail. Special bail is nowhere else mentioned in our procedure, and it is necessary to recur to the common-law practice to ascertain what special bail is.

When a defendant was arrested on civil process at common law, he could be released on...