Green v. Kindy

• Decision Date: 14 April 1880
• Court: Michigan Supreme Court
• Parties: GREEN and others v. KINDY and others.

5 N.W. 297

43 Mich. 279

GREEN and others v. KINDY and others.

Supreme Court of Michigan

April 14, 1880

The return of a sheriff that the plaintiffs in a replevin action failed to deliver the necessary bond to secure the delivery of property replevied to them is conclusive, unless motion is made to correct it. To enable defendants to maintain an action upon such bond, when given, it must be assigned by the sheriff. Sureties are not guarantors of the genuineness of the signatures, and if the bond is not executed by the principal the sureties will not be bound.

Error to Kalamazoo.

H.C Briggs, for plaintiff in error.

Oscar Tuthill, for defendant in error.

MARSTON C.J.

This action was brought upon what purported to have been a bond dated April 23, 1869, given by the plaintiffs in a replevin suit, under Comp.Laws, � 6735, to obtain a delivery of the property from the sheriff. There are a number of fatal objections to a recovery in the present case; all need not be noticed. The return of the sheriff in the replevin suit was dated May 1, 1869, and was filed two days thereafter. In this he certifies and returns that he replevied the property, as commanded, April 22d, and that the plaintiffs in the suit failed to give him the required bond within the time required by law, and that the property so replevied was, by him returned to the defendants. This return of the officer is conclusive upon all the parties in that action. The statute,� 6739, requires the sheriff to make a specific return to the writ. If the return is not correct, on notice given and a proper showing made, the court may permit an amendment of the return, but unless this is done the return must stand as made; it cannot be contradicted. If the return is false, the party injured thereby has a remedy, but not in the present form.

The proceedings in the cause, subsequent to the return of the writ, are very different, where a bond has been given and the property thereon delivered to the plaintiffs, than where no bond has been given. The only consideration for the giving of such a bond is to enable the plaintiffs to obtain possession of the property pending the litigation. If a proper bond is given to and accepted by the sheriff, he must then deliver the property to the plaintiffs, and if not given the property is returned to the defendant.

After the rights of the parties had been determined in the replevin suit, upon a return showing the property in the defendant's possession because no bond was given, it would be productive of serious mischief to permit the defendant, in a subsequent action, to introduce oral evidence to contradict the officer's return. The bond runs to the sheriff, and he is required to assign the same to the defendant, or his representatives, on their request. Section 6764. There was no assignment of the bond to the plaintiff in this case. The sheriff, the finding says, kept it until January 1, 1871, and then delivered it to Kindy's attorney, for his use and benefit. This was not...