Md. Cas. Co v. Parrish

• Citation: 143 S.E. 750
• Parties: MARYLAND CASUALTY CO. v. PARRISH.
• Decision Date: 14 June 1928
• Court: Virginia Supreme Court

143 S.E. 750

MARYLAND CASUALTY CO.

v.PARRISH.

Supreme Court of Appeals of Virginia.

June 14, 1928.

Prentis, P. J., dissenting.

Error to Circuit Court, Goochland County.

Action by E. T. Parrish against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error. Reversed, with directions.

S. L. Sinnott and John G. May, Jr., both of Richmond, for plaintiff in error.

Bethel & Williams and Leake & Spicer, all of Richmond, for defendant in error.

CHICHESTER, J. The writ of error awarded in these proceedings brings before this court for review a judgment of the circuit court of Goochland county, Va., in an action at law in which E. T. Parrish was plaintiff, and is hereafter referred to as plaintiff, and the Maryland Casualty Company, a foreign corporation, was defendant, hereinafter referred to as defendant or the casualty company. The judgment was rendered on the 11th day of November, 1926.

The plaintiff claimed damages of $20,000, to be discharged by the payment of $5,000,

with interest thereon from the-day

of June, 1923, until paid, and costs, on account of a surety bond executed by the casualty company for the Ryland & Brooks Lumber Company. As between the plaintiff and the casualty company, there was no question of disputed fact, a. jury was waived, and the question of law submitted to the court for decision. The court decided the law question adversely to the casualty company, and, there being no further defense, judgment was rendered against it in the sum of $20,000, to be discharged by the payment of $5,000 as heretofore stated.

A brief summary of the essential facts is that, on February 21, 1920, E. T. Parrish, plaintiff, was working at the lathe mill of Ryland & Brooks Lumber Company in Goochland county, and while so working he had his right hand cut off. Several months later he instituted suit against the Ryland & Brooka Lnmber Company, which was a foreign corporation, by way of attachment. The attachment was levied on property belonging to Ryland & Brooks Lumber Company in Goochland county, but, as no bond was given by the plaintiff in suing out his attachment, the sheriff did not take possession of the property, and it was therefore subject only to the lien of the attachment pursuant to section 6393 of the Code. The Ryland & Brooks Lumber Company, in order to have or retain possession and control of the property free of the lien, executed a forthcoming bond under the first clause of section 6394 of the Code, with condition, "if the said property above described and attached, as herein set out, shall be forthcoming at such time and place as the court in the cause aforesaid may require, then this obligation shall be void; otherwise, it shall be, and remain, in full force and virtue." The casualty company signed this forthcoming bond as surety on August 19, 1920, the case was continued from that date until November, 1922, chiefly on dilatory pleas filed by Ryland & Brooks Lumber Company.

On the 11th day of November, 1922, the Ryland & Brooks Lumber Company made an affidavit of substantial defense to the merits of the plaintiff's claim. This affidavit was made under section 6385 of the Code of Virginia 1919, ¹ and is in conformity with the provisions of that statute. The plaintiff was served with notice of the filing of the affidavit on the 17th day of November, 1922, but neither the plaintiff nor any one for him has at any time entered into a bond as required by this section of the Code.

The case was then continued on the docket from November, 1922, until June, 1923, on various dilatory questions raised by the Ryland & Brooks Lumber Company, and on the 16th day of that month the cause was tried and a jury found a verdict in favor of the plaintiff against the Ryland & Brooks Lumber Company in the sum of $5,000, and the court rendered judgment thereon on the 26th day of April, 1924, which was a year and a half after the affidavit of substantial defense above referred to was filed.

The plaintiff, failing or being unable to collect on his judgment, instituted action on the 26th day of September, 1925, against the Maryland Casualty Company as surety on the forthcoming bond heretofore referred to. To this notice of motion the defendant filed a special plea, the purport of which was: That the Ryland & Brooks Lumber Company, in the action of E. T. Parrish against it, had made affidavit that it had a substantial defense to the merits of the plaintiff's claim, and that such affidavit was otherwise in conformity with section 6385 of the Code of Virginia 1919, as aforesaid, and that, when such affidavit was filed by the defendant, it then became the duty of the plaintiff, or some one for him, to enter into a bond in a penalty of at least double the amount sued for, conditioned that the plaintiff would prosecute his attachment with diligence, and the obligors would pay all costs and damages which might be awarded against the plaintiff, or sustained by the defendant; that no such bond had been entered into by the plaintiff, as required by said section 6385 of the Code of Virginia 1919' and that such section provided, unless the bond was entered into by the plaintiff, that the attachment should stand ipso facto dismissed within ten days after the plaintiff had received notice of the affidavit; that said bond required of the plaintiff had not been entered into within ten days, nor had it ever been entered into.

The plaintiff moved to strike out this special plea, which had the effect of admitting the truth of the facts alleged therein, and the motion to strike out the special plea was sustained. Exception was duly taken to the action of the court in striking out the special plea, and this exception presents the only assignment of error and question for consideration by this court.

The real question in the case is: Whether the forthcoming bond entered into by the Ryland & Brooks Lumber Company and the casualty company as surety was in force at the time of the rendition of the judgment against the casualty company.

Under section 6404 of the Code of 1919 (which appears in the margin), ² the Ryland & Brooks Lumber Company being properly before the court, the court undoubtedly had jurisdiction to enter a personal judgment against it, even though the attachment was dismissed.

The court held that the attachment was dismissed, and we think properly so held. The statute, section 6385, is mandatory that, if the bond provided for therein to prosecute the attachment with diligence and to pay all costs and damages which might be awarded against the plaintiff, or sustained by the defendant, is not given within ten days of the service of such notice, the attachment shall stand dismissed ipso facto.

The statute does not require construction. Its terms are plain, and can have but one meaning. The term "ipso facto" has had frequent construction by this court, and it is only necessary to make reference to some of the cases construing it. See Ohildrey v. Rady, 77 Va. 518; Owens v. Owens, 78 Va. 116; Vaughan v. Johnson, 77 Va. 300. See, also, State v. Lansing, 46 Neb. 514, 64 N. W. 1104, 35 L R. A. 124; Barber v. Hayword, 248 Mo. 280, 154 S. W. 140.

There can be no question therefore as to what becomes of the attachment in case of a failure to give the bond required of a plaintiff by section 6385, when the defendant has filed an affidavit of substantial defense and has complied with its other provisions as the Ryland & Brooks Lumber Company did in this case. It stands ipso facto dismissed; that is, without any affirmative action of the court. The only question is, Did the bond, in this particular case, upon which the defendant became surety, survive the dismissal of the attachment, so as to permit the court to enter a judgment against the casualty company.

If the bond was given in pursuance to section 6394³ there is no question but that the bond lost its vitality with the attachment. This is practically conceded by counsel for plaintiff, who contends that the bond in this case is not a statutory forthcoming bond but a common-law (release) bond.

We cannot concur in this view. It is true the bond concluded with the expression, "whereas the said Ryland & Brooks Lumber Company are desirous of releasing the said property attached as aforesaid"; this is but the effect of the execution of the bond which concluded immediately thereafter, "Now, therefore, if the said property above described and attached as herein set out shall be forthcoming at such time and place as the court in the cause aforesaid may require, then this obligation shall be void; otherwise it shall be and remain in full force and virtue."

Section 6394 of the Code provides for the giving of just such a bond to have the property forthcoming at such time and place as the court may require or to release from any attachment the whole of the estate attached. In other words, the defendant in an attachment proceeding, whose property has been attached, under section 6394, independently of whether the plaintiff has given bond in order that the sheriff may take possession of the property or not, may retain possession of the property or have the possession of the property returned to him, by giving bond to have such property forthcoming as required by the statute, or, under the provisions of the same section, the defendant may give bond with condition to perform the judgment of the court and have released from the attachment the whole of the estate attached.

In the instant case, the defendant gave bond under the first provision of section 6394, the effect of which was, of course, to release the property from the lien of the attachment upon condition, exactly as provided by the bond in the instant case, to have the property forthcoming at such time and place as the court may require.

It is very clear that the bond in the instant case was strictly a statutory bond, and, if so, there can be no question but that, when the attachment was dismissed, the bond became...