Ferguson v. Glidewell

• Decision Date: 15 January 1887
• Citation: 2 S.W. 711
• Parties: FERGUSON <I>v.</I> GLIDEWELL.
• Court: Arkansas Supreme Court

2 S.W. 711

FERGUSONv.

GLIDEWELL.

Supreme Court of Arkansas.

January 15, 1887.

Appeal from circuit court, Pulaski county.

Action against surety on bond to dissolve an attachment. Judgment for defendant. Plaintiff appeals.

Blackwood & Williams, for appellant. W. F. Hill, for appellee.

BATTLE, J.

Ferguson brought suit against W. F. Moore on an account, and sued out an attachment on the alleged ground that Moore was about to sell his property with the intent to defraud his creditors. The constable levied the order of attachment on certain property of Moore, who caused a bond to be executed to Ferguson by H. E. Glidewell, as surety, to the effect that Moore would perform the judgment of the court. The bond was approved, and the property released. Moore filed an affidavit denying the statement of the affidavit of plaintiff upon which the attachment was issued. Judgment was rendered in favor of plaintiff against defendant on the account, and the attachment was ordered to be discharged. Ferguson then brought this action against Glidewell on the bond executed by him for the amount of the judgment recovered against Moore. Glidewell answered, setting up the order discharging the attachment as his defense. Judgment was rendered in favor of Glidewell, and Ferguson appealed.

The only question in the case is, did the order of the court discharging the attachment release Glidewell from the obligation of his bond? This question has not been before this court since the adoption of the Code, but it is sometimes insisted that it did arise under prior statutes of this state which were the legal equivalent of the statute under which the bond sued on was executed, and that this court decided it in the affirmative in Delano v. Kennedy, 5 Ark. 457; Childress v. Fowler, 9 Ark. 159; and Ward v. Carlton, 26 Ark. 662.

The statutes of this state prior to the Code provided that suits at law might be commenced in any of the circuit courts of this state, by filing in the office of the clerk of such court a declaration, petition, or statement in writing, setting forth the plaintiff's cause of action, an affidavit setting forth grounds of attachment, and a bond to the defendant, with sufficient security, to the effect that plaintiff will prove his debt or demand on a trial at law, or that he will pay such damages as shall be adjudged against him, and by suing out a writ of attachment against the property of the defendant; that the defendant, at the time of the service of the writ of attachment, or at any time before judgment shall be rendered against him, might file a bond, "conditioned that he will appear to and answer the plaintiff's demand at such time and place as by law he should, and that he will pay and abide the judgment of the court, or that his surety will do the same for him;" and that when the defendant should file such bond, as required by law, the attachment should be released, and the suit proceed as other suits at law. This court held that the proceeding authorized by these statutes was, in its inception, a compound proceeding, combining a proceeding in rem with a proceeding in personam, each having a distinct identity, but liable to be transformed, at any time before final judgment, into a proceeding solely in personam, and as a whole was founded upon the declaration, bond, affidavit, and writ, in harmonious combination; and that, should this foundation be defective, as it would be in case the affidavit, the bond, or the writ should not be in conformity with the statute, or either should vary, the one from the other, in so much as to disturb the harmony of the whole as one suit, the entire proceedings, if appropriately assailed, would necessarily fail. It further held that the object of these statutes were to obtain jurisdiction of the person of the defendant; that the bond which the defendant was authorized by these statutes to execute to secure the release of his property was essentially an instrument of bail, which accomplished substantially all the ends that were accomplished at common law by the taking of the bail-bond below, together with the subsequent filing, entering, and perfection of bail to the action above; that, when a defendant in an action of attachment executed such a bond, he did nothing more than a defendant did in England in an ordinary action when he first executed a bail-bond below to the sheriff, and subsequently appeared, as he had covenanted to do, and entered into a recognizance of special bail to the action above, and perfected appearance there by the justification of his bail; that the bail-bond below to the sheriff, and the recognizance of special bail to the action above, did not have the effect, at common law, of cutting off any of the defenses of the defendant; and that, therefore, the execution of the bond by the defendant for the purpose of discharging the attachment, under the statutes referred to, did not impair any of the defendant's rights of defense, and that, after its execution, he might defend the action, either by plea in abatement interposed in apt time and in due form, or by plea in bar, in the same manner, in every respect, as if he had not executed the bond, and has suffered the property attached to remain in the hands of the sheriff. Childress v. Fowler, supra.

But the Code has made radical changes in the pleading and practice in the courts of this state. The bond and affidavit made by the plaintiff to secure an attachment, and the writ of attachment, no longer form a part of the original proceedings by which an action at law may be commenced. Under the Code, attachment is a provisional remedy, and merely ancillary to the action in which it is sued out. Its object, as expressly defined by the Code, is to secure the satisfaction of such judgment as may be recovered by the plaintiff. The bond the defendant is authorized to give to dissolve an attachment no longer fills the office of a bail-bond at common law. It does not bind him to appear to and answer the plaintiff's demand at such time and place as by law he should, as it did under the former statutes. The rules of construction heretofore followed by this court in passing upon the effect of a bond of the defendant to dissolve an attachment upon his right to attack the attachment proceedings are not, therefore, applicable to a dissolution bond executed under the Code, the reason having ceased to exist. The bond sued on was executed under section 337 of Mansfield's Digest, which reads as follows: "If the defendant at any time before judgment, causes a bond to be executed to the plaintiff, by one or more sufficient sureties, to be approved by the court, to the effect that defendant shall perform the judgment of the court, the attachment shall be discharged, and restitution made of any property taken under it, or the proceeds thereof."

In construing statutes like this courts are not in accord. In Lehman v. Berdin, 5 Dill. 340, the United States circuit court for the Eastern district of Arkansas, in construing the section under which the bond in question was executed, held that a bond executed in accordance therewith "does not estop the defendant from traversing the affidavit for attachment, and defending against the attachment in every respect as if such bond had not been executed, and the property had remained in the hands of the officer;" "and that, if the attachment is not sustained, the plaintiff, though he recover judgment for his debt, cannot resort to the bond to compel payment of such judgment."

Section 265 of the Code of South Carolina is a section similar to section 337 of Mansfield's Digest, and concludes as follows: "In all cases the defendant may move to discharge the attachment as in the case of other provisional remedies." In Bates v. Killian, 17 S. C. 553, the defendant having given a bond under this section, the court held he did not thereby waive his right to have the attachment discharged as irregularly and improvidently granted, the court laying stress upon the conclusion of the section under which the bond was given.

Article 259 of the Louisiana Code of Practice, as amended by the act of seventeenth of March, 1852, provided that "the defendant, if he appear either in person or by attorney, may, moreover, in every stage of the suit, have the property attached released by delivering to the sheriff his obligation for the sum, exceeding by one-half the value of the property attached, with the surety of a good and solvent person, residing within the jurisdiction of the court where the action was brought, that he will satisfy such judgment, to the value of the property attached, as may be rendered against him in the suit pending." In Love v. Voorhies, 13 La. Ann. 549, the defendant having given bond under this article, the court held the bond had the effect to release the seizure of the property attached, but did not dissolve the attachment, and that the defendant was not thereby debarred from subsequently moving to quash the order of attachment.

In the Ohio Code there are the same provisions as those contained in sections 327 and 337 of Mansfield's Digest. In Myers v. Smith, 29 Ohio St. 120, an attachment was issued, and the defendant thereafter executed a bond to the effect that he would perform the judgment of the court. The court held that the effect of the bond was to supersede all proceedings under the attachment, and to bind the sureties on the bond to perform the judgment that might be recovered against him in the action.

In McAllister v. Eichengreen, 34 Md. 54, the appellant was one of the obligors in a bond given for the purpose of dissolving an attachment which had been sued out of the court of common pleas of Baltimore city against Moses Coleman and ____ Coleman, and levied upon their goods. The condition in it was "that, if the said Moses Coleman and ____ Coleman should satisfy any judgment that shall be recovered in said case against them, then the said obligation shall be void; else...