Jaffe v. Leatherman

• Decision Date: 12 January 1933
• Docket Number: 6 Div. 137.
• Citation: 146 So. 273,226 Ala. 182
• Parties: JAFFE et al. v. LEATHERMAN.
• Court: Alabama Supreme Court

146 So. 273

226 Ala. 182

JAFFE et al. v. LEATHERMAN.

6 Div. 137.

Supreme Court of Alabama

January 12, 1933

Rehearing Denied March 2, 1933.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Motion of Ben Jaffe and others to quash forfeiture on replevy bond resisted by F. A. Leatherman, plaintiff in detinue. From a judgment for plaintiff, defendant and sureties appeal.

Affirmed.

See also, 222 Ala. 326, 131 So. 902.

Jas. H Bradford and Richard H. Fries, both of Birmingham, for appellants.

Wm. S Pritchard, J. D. Higgins, and J. W. Aird, all of Birmingham, for appellee.

THOMAS Justice.

The effect of the allowance of an amendment of the sheriff's return on the replevin bond by a succeeding sheriff, under section 7389 of the Code, as to the delivery of the property or forfeiture of the bond by the defendant in detinue, is presented by this appeal.

The former appeal presented the question of the insufficiency of the return as originally made by Sheriff Downs, a former official of the county. Jaffe v. Leatherman, 222 Ala. 326, 131 So. 902, construing sections 7389, 7394 of the Code. May the present incumbent in that office voluntarily correct that return so as to give it the force and effect of a judgment on which process may issue under the statute, section 7394, Code?

The decisions are to the effect that such a sheriff's return in replevin must be strictly construed in its substantial compliance with the statute, and, when so construed, there must be such a conformance with the statute as to authorize and support an execution thereon. Jaffe v. Leatherman, supra; Garrett, Sheriff, v. Cobb, 199 Ala. 80, 74 So. 226.

This record shows that suit in detinue by F. A. Leatherman was maintained to judgment against Ben Jaffe for certain "bulky" personal property (54 C.J. 640, § 411), and that the same was prevented from being taken from defendant's possession by the statutory replevin bond executed by defendant, Ben Jaffe, and Julius Jaffe and Maurice Letaw, as sureties, payable to Leatherman, and upon the condition that, "if the defendant [Ben Jaffe] is cast in the said suit, and shall within thirty days thereafter deliver the said property to the plaintiff and pay all costs and damages which may accrue from the detention thereof, then the above obligation to be void; otherwise to remain in full force and effect."

The bond, filed on June 21, 1928, was in the following terms:

"Whereas, under a writ of detinue issued in favor of F. A. Leatherman against Ben Jaffe out of the Circuit Court, the Sheriff of said County has been commanded to seize the following described property:

"One Duplex Super Reproduco Pipe Organ and Six (6) Rolls of Music, Style D. S. R. #282845, and has taken the same into his possession, and the possession of said property has been restored to the defendant on execution of this bond; now, if the defendant is cast in the said suit, and shall within thirty days thereafter deliver the said property to the plaintiff and pay all costs and damages which may accrue from the detention thereof, then the above obligation to be void; otherwise to remain in full force and effect."

The sheriff's return read:

"Thirty days having expired since judgment was rendered in this cause, the property herein replevied not having been delivered to the sheriff by either the defendant or his sureties this bond is hereby declared forfeited this February 26th, 1929.

"W. O. Downs, Sheriff,

"E. B. Turner, D. S."

The amendment allowed was:

"Made pursuant to order of Circuit Court dated Nov. 12, 1931, Thirty days having expired since judgment was rendered in this cause, the property herein replevied not having been delivered to the plaintiff by either the defendant or his sureties this bond is hereby declared forfeited this February 26, 1929.

"W. O. Downs, Sheriff,

"By E. B. Turner, D. S.

"Thirty days having expired since judgment was rendered in this cause, the property herein replevied not having been delivered to the plaintiff by either the defendant or his sureties this bond is hereby declared forfeited this 1st day of May, 1931.

"Jas. F. Hawkins, Sheriff,

"By E. B. Turner, Deputy Sheriff.

"Filed in office June 25, 1928."

And such were the indorsements on the bond.

On the 17th day of December, 1928, judgment was rendered in said suit for the plaintiff against defendant for the property, and its alternate value fixed by the jury at $1,700, together with the sum of $400 as damages for the detention of said property; the latter sum being paid by the defendant. On February 26, 1929, Mr. Downs, as sheriff, through his deputy, E. B. Turner, entered the return on the replevin bond, as we have indicated, and that return was held insufficient on the former appeal, and the case was reversed and remanded.

On retrial of the case the sheriff in office, Hon. Jas. F. Hawkins, by E. B. Turner, deputy sheriff, voluntarily entered upon the same replevin bond, the return or entry now challenged by this appeal. This amendment was made on motion of the plaintiff and the former sheriff and his deputy.

On the 4th day of May, 1931, defendants appellants filed a motion to set aside and quash said forfeiture so entered against them in the said cause on the 1st day of May, 1931, by the incumbent in the office of sheriff, Hon. Jas. F. Hawkins, and assigned several grounds on which the motion rested to "set aside and quash" the return of forfeiture against movants as such sureties on the replevin bond. The grounds of the motion were to the effect that "said forfeiture is null and void on its face"; that there was no notice given defendants of the making of the amended return; that the succeeding sheriff in office making the last return "had no legal right, power, warrant, or jurisdiction to declare such forfeiture; * * * possessed no legal, competent evidence" or jurisdiction on which to base said forfeiture so entered; that the forfeiture "was not declared within the statutory period" after judgment against defendants, nor was the nondelivery or forfeiture "declared by W. O. Downs, former sheriff, within the time prescribed by the laws"; and "that said property referred to in said forfeiture was actually delivered or tendered (for delivery) to said plaintiff by said defendant within thirty days after the rendition of said judgment against that defendant." And on November 12, 1931, the court (under the decision in this case) granted the motion and quashed said forfeiture as originally declared by the return of Sheriff Downs.

Thereupon the record shows that on May 23, 1931, the plaintiff, appellee Leatherman, "W. O. Downs, Sheriff," and "E. B. Turner, Deputy Sheriff," filed their motion or petition, averring that the former entry of forfeiture (made on February 26, 1929) was irregular, "in that the word 'plaintiff' should have been used in lieu of the word 'sheriff' where the word 'sheriff' appears in said return immediately following the phrase 'not having been delivered to the"'; that this failure was "due solely to a mistake and/or oversight" on the part of the sheriff or his deputy "in declaring the said bond forfeited," and was a "mere irregularity in the recital of facts" in "declaring the said bond forfeited"; and the court was moved for a permit to duly amend that return so that it would recite the fact that the property replevied was "not delivered to the plaintiff" (in lieu of the return formerly entered, that the sheriff had not had the property delivered to him by the defendant) "by either the defendant or his sureties," and that the "bond is hereby declared forfeited this the 1st day of May, 1931."

The court ordered that such amendment may be made, or was permitted to be, and was made by the sheriff in office on the date of May 1, 1931. To this action of the trial court the "defendant excepted."

The demurrer to plaintiff's petition or motion to amend contained grounds, among others, that it was barred by laches and by the statute of limitations of one year; that it did not show that plaintiff made timely demand on Downs, as sheriff, or that due proceedings were taken to command him to so amend; that it shows that plaintiff had not the right of amendment by not duly moving therefor upon his discovery of its insufficiency on February 26, 1929; and fails to allege any reason, fact, excuse, or cause for plaintiff's failure to apply for an amendment of said return between the 26th day of February, 1929 (date of forfeiture), and the 19th day of January, 1931.

There was answer, and demurrers thereto; motion to strike answer of defendant to plaintiff's and sheriff's motion to amend the return; and a motion to quash the return as amended by "James F. Hawkins, Sheriff, By E. B. Turner, Deputy Sheriff," pursuant to the motion and permission granted by the court. This will illustrate the questions presented and assigned as errors: The overruling of defendants' demurrer to the motion or petition to amend; the overruling of defendants' motion to quash the return made on May 1, 1931; the overruling of defendants' motion to quash the sheriff's return as amended pursuant to the permission of the court, voluntarily by Hon. James F. Hawkins; and in granting the motion of Mr. Downs, the former sheriff, and his former deputy sheriff, E. B. Turner, to permit the present sheriff to amend the sheriff's return made and to become effective of the date of February 26, 1929.

We have indicated that a statutory forfeiture-as such a return-is strictly construed (Jaffe v. Leatherman, supra; Ex parte White et al. [White et al. v. Morring], 209 Ala. 95 95 So. 495; Traweek v. Heard, 97 Ala. 715, 12 So. 166; Harrison v. Hamner, 99 Ala. 603, 12 So. 917; Harbin v. O'Rear, 219 Ala. 173, 121 So. 547; Holloway et al. v....