Jaffe v. Fidelity & Deposit Co.

• Decision Date: 23 January 1913
• Citation: 7 Ala.App. 206,60 So. 966
• Court: Alabama Court of Appeals
• Parties: JAFFE v. FIDELITY & DEPOSIT CO.

60 So. 966

7 Ala.App. 206

JAFFE v. FIDELITY & DEPOSIT CO.

Court of Appeals of Alabama

January 23, 1913

Appeal from Circuit Court, Jefferson County; E. C. Crowe, Judge.

Action by L. Jaffe against the Fidelity & Deposit Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Z. T Rudulph, of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

THOMAS, J.

The appellant, Jaffe, brought suit against the Koplin Iron Company, and in aid thereof procured ancillary writs of garnishment to be issued and served upon divers corporations supposed to be indebted to said Koplin Iron Company.

The latter, under the provisions of section 2184 of the Code of 1896, now 4313 of the Code of 1907, executed bond conditioned in all particulars as therein required for the dissolution of the garnishments, with the appellee, the Fidelity & Deposit Company of Maryland, as surety on said bond. The appellant, Jaffe, thereupon proceeded to obtain judgment in the original suit against the defendant, the said Koplin Iron Company, but for some reason, probably an oversight of the trial court, not made to appear in the record, no judgment was rendered against the surety on the said dissolution bond, the said Fidelity & Deposit Company of Maryland, the appellee, as provided for and required by said section 4313 (2184) of the Code under which the bond was executed.

The appellant then brings the present suit against said surety declaring on the said dissolution bond, alleging that the plaintiff, appellant, had obtained a judgment, describing it against the principal obligor, the Koplin Iron Company, and that the conditions of the bond had been broken in that said surety had failed to pay said judgment and costs, as by the express terms of said bond it bound itself to do. A demurrer was interposed to the complaint, containing divers grounds, several of which were sustained by the trial court. Among the number expressly sustained in the judgment entry by reference to its number is the following: "For that it is affirmatively shown in said count that the plaintiff did not pursue the remedy afforded him by the statute in taking a judgment against the surety on the garnishment dissolution bond at the time the judgment was rendered against the Koplin Iron Company, and he thereby waived any right or rights which he may have had to a judgment against this surety." This presents the real controversy between the parties, and raises the question as to whether or not the statutory remedy for the enforcement of the bond afforded by said section 4313 of the Code is exclusive or merely cumulative of common-law remedies.

If it is merely cumulative, and the plaintiff failed to take advantage of the statutory remedy at the proper time, he is not, of course, precluded now from pursuing a common-law action on the bond, provided it, the bond, is supported by a sufficient consideration, about which latter, we think, there can well be no doubt, for by the execution and delivery of the bond the surety accomplished the dissolution of the garnishments to the detriment of the plaintiff. Munter &amp Faber v. Reese, 61 Ala. 395.

The mere fact that the bond is good as a statutory bond and enforceable in the method provided by the statute does not of itself prevent recourse to a common-law action for its enforcement. 5 Cyc. 813; Bullock v. Traweek (Tex. Civ App.) 20 S.W. 724; Hill v. Fidelity Co., 157 Ill.App. 261.

The general rule is that a special remedy given by statute is cumulative, and not exclusive of the ordinary jurisdiction of the courts, unless the manifest intention of the statute be to make such special remedy exclusive,...