Ferguson v. State ex rel. Bains

• Decision Date: 22 March 1962
• Docket Number: 6 Div. 780
• Citation: 142 So.2d 260,273 Ala. 463
• Parties: P. T. FERGUSON et al. v. STATE ex rel. Jack M. BAINS, County Solicitor.
• Court: Alabama Supreme Court

Page 260

142 So.2d 260

273 Ala. 463

P. T. FERGUSON et al. v. STATE ex rel. Jack M. BAINS, County Solicitor.

6 Div. 780.

Supreme Court of Alabama.

March 22, 1962.

Rehearing Denied June 21, 1962.

Embry & Whitten, Pell City, and Fred Blanton, Birmingham, for appellants.

MacDonald Gallion, Atty. Gen., and Winston Huddleston, Sp. Asst. Atty. Gen., for appellee.

LAWSON, Justice.

On May 19, 1960, law enforcement officers of Blount County seized a 1955 Ford truck while it was being used in the transportation of prohibited liquors within that county. A condemnation proceeding was instituted on May 25, 1960, under the provisions of § 247, as amended, and § 248, Title 29, Code 1940.

On June 8, 1960, the truck was released on bond to one J. B. Wise, who claimed to be its owner, pursuant to § 249, Title 29, Code 1940, the condition of the bond being that: 'If said property is condemned and forfeited by judgment of condemnation of said Court, the said J. B. Wise will deliver the same to the Sheriff of said County within fifteen days from the date of such judgment of condemnation, and will pay any difference between the value of the property at the time of the seizure and the date of delivery to the Sheriff after condemnation. [sic] This obligation to be void, but upon failure to deliver said property and pay such difference in the value, this obligation is to remain in full force and effect.' The bond was signed by J. B. Wise, P. T. Ferguson, Theodus Smith and Fred Beason.

While it was thus released under bond, the same, Ford truck was seized by the Sheriff of St. Clair County while illegally transporting prohibited liquors in St. Clair County. Condemnation proceeding was instituted in St. Clair County on or about March 7, 1961. On March 27, 1961, the St. Clair County authorities released the truck to J. B. Wise on bond pursuant to § 249, Title 29, Code 1940, the condition of the bond being substantially the same as that previously executed in Blount County. The bond was signed by J. B. Wise and two other individuals.

On June 6, 1961, the said Ford truck was delivered to the Sheriff of St. Clair County by one of the individuals who had executed the St. Clair County bond with Wise on March 27, 1961.

On June 9, 1961, the Circuit Court of Blount County, in Equity, rendered a decree condemning the truck and forfeiting it to the State of Alabama. The decree of June 9, 1961, contained the following provision:

'It is further ordered that after the expiration of fifteen days from the date of this decree the sheriff of Blount County shall report to this Court whether or not said Ford Truck has been delivered by the said J. B. Wise or anyone else, and that all further orders with reference to a sale of said vehicle, or proceedings on the bond, be reserved until after the report of the sheriff aforesaid.'

Thereafter, on June 16, 1961, Ferguson, Smith and Beason, who had executed the Blount County bond with J. B. Wise on June 8, 1960, filed their 'Motion to Relieve Sureties on Bond,' wherein they alleged that the truck was in the hands of the Sheriff of St. Clair County as shown above and further averred that they will remain unable to comply with the terms of the bond which they executed or with the terms of the decree rendered by the Blount County Circuit Court, in Equity, on June 9, 1961. The special prayer of the motion was that the movants 'be relieved of their obligations as sureties on said forthcoming bond, except as to the difference in value, if any, pursuant to Title 29, Section 249, Code of Alabama 1958 [sic].' There was also a prayer for general relief.

A hearing was had on the 'Motion to Relieve Sureties on Bond' on June 26, 1961. On June 27, 1961, the Sheriff of Blount County reported to the Register and to the Circuit Court of Blount County, in Equity, that the persons who executed the Blount County bond on June 8, 1960, had failed to deliver the truck in accordance with the terms of the decree of June 9, 1961.

On July 11, 1961, the Circuit Court of Blount County, in Equity, rendered a decree which reads in part as follows:

'It is therefore ordered, adjudged and decreed by the Court that that certain bond given by J. B. Wise, as principal, and P. T. Ferguson, Theodus Smith and Fred Beason are [sic] sureties, in the amount of $1600.00, conditioned on the delivery of one 1955 model Ford truck, Serial Number F61Z5A20683 within fifteen days after a judgment of condemnation and forfeiture of said truck, be and the same is forfeited to the State of Alabama, and the Register of this Court is hereby ordered and directed to issue execution thereon against the principal and his sureties for the amount of the value of such property, to-wit $800.00.'

From that decree Ferguson, Smith and Beason appealed to this court.

It is settled law in this state, as well as many other jurisdictions, that sureties on a bail bond can only be discharged from liability by the appearance of their principal according to the condition...