Ex parte White

• Decision Date: 01 February 1923
• Docket Number: 8 Div. 525.
• Citation: 209 Ala. 95,95 So. 495
• Parties: EX PARTE WHITE ET AL. v. MORRING. WHITE ET AL.
• Court: Alabama Supreme Court

95 So. 495

209 Ala. 95

EX PARTE WHITE ET AL.

WHITE ET AL. v. MORRING.

8 Div. 525.

Supreme Court of Alabama

February 1, 1923

Certiorari to Court of Appeals.

Petition of L. C. White and others for certiorari to the Court of Appeals, to review and revise the judgment and decision of said court in the case of L. C. White et al. v. G. T Morring, 95 So. 494. Writ awarded; reversed and remanded.

Thomas and Miller JJ., dissenting.

R. E Smith, and of Huntsville, for petitioners.

Cooper & Cooper, of Huntsville, opposed.

GARDNER J.

Petition for writ of certiorari to review the ruling of the Court of Appeals in the case of L. C. White et al. v Morring, 95 So. 494, involving the action of the court below in overruling the motion of these petitioners to quash the execution issued on the forfeited replevy bond in a detinue suit. The bond appears in full in the opinion of the Court of Appeals, and need not be here reproduced. That court held the bond sufficient as a statutory obligation, and that is the question of importance upon this application.

The bond did not contain the condition for a delivery of the property to the plaintiff, the language merely being "deliver the property replevied." The Court of Appeals upon this question holds that "the entire obligation was to G. T. Morring, the plaintiff, and to him the delivery is required," and that therefore the bond sufficiently meets the statutory requirements. The statute (section 3778 of the Code of 1907) provides, as one of the conditions of the bond, that the property be delivered to the plaintiff.

In Traweek v. Heard, 97 Ala. 715, 12 So. 166, the bond failed to contain the condition "and pay all costs and damages which may accrue from the detention thereof." Speaking of this omission, the court said:

"This was a defect in the bond which deprived it of its statutory capacity. Such bonds to be statutory must follow strictly the substance, and it would be well, in practice, always, the letter of the statute, and not contain conditions other or fewer than the statute requires."

See, also, in this connection Harrison v. Hamner, 99 Ala. 603, 12 So. 917.

We do not think that, from the mere fact the bond was made payable to the plaintiff, the condition for delivery of the property to the plaintiff is necessarily implied. Had the bond (by way of illustration) been conditioned for a delivery to the sheriff of the property, its insufficiency as a...