Rains v. Ethridge-Atkins Motor Co.

• Decision Date: 17 April 1930
• Docket Number: 7 Div. 942.
• Citation: 221 Ala. 160,127 So. 905
• Parties: RAINS ET AL. v. ETHRIDGE-ATKINS MOTOR CO.
• Court: Alabama Supreme Court

127 So. 905

221 Ala. 160

RAINS ET AL. v. ETHRIDGE-ATKINS MOTOR CO.

7 Div. 942.

Supreme Court of Alabama

April 17, 1930

Appeal from Circuit Court, Cherokee County; A. E. Hawkins, Judge.

Action for breach of a replevy bond by the Etheridge-Atkins Motor Company against Gus Rains, J. W. Gramling and H. L. Snead. From a judgment for plaintiff, defendants appeal. Transferred from Court of Appeals.

Affirmed.

E. O McCord & Son, of Gadsden, for appellants.

Hugh Reed, of Center, for appellee.

BROWN J.

This action is by the appellee against the appellants for the breach of the conditions of a replevy bond executed by the appellant Rains as principal, with the other appellants as his sureties, and payable to the plaintiff, under which Rains retained the possession of a Ford automobile, which had been seized by the sheriff of Cherokee county, under a writ of detinue, issued in a suit by the plaintiff against Rains brought for the recovery of the automobile, and damages for its wrongful detention.

The conditions of the bond are: "Now, therefore, *** if the said Gus Rains, Constable Beat 6, shall well and truly within thirty days after the determination of said suit, if the said Gus Rains, Constable Beat 6, be cast in said suit, deliver the property replevied, and also pay all costs and such damages for detention as may accrue from said detention, then this obligation to be void; otherwise to remain in full force and effect."

In Ex parte White et al. (White et al. v. Morring), 209 Ala. 95, 95 So. 495, 496, a proceeding to supersede and quash an execution issued on a forfeited bond, it was ruled that a bond in that case, in substance the same as the bond here involved, was insufficient as a statutory bond, and would not support the issuance of an execution, and in the course of the opinion it was observed: "We do not think that, from the mere fact the bond was made payable to the plaintiff, the condition for delivery of the property to the plaintiff is necessarily implied. Had the bond (by way of illustration) been conditioned for a delivery to the sheriff of the property, its insufficiency as a statutory bond could not be questioned.

"In the instant case the person to whom the property is to be delivered is omitted, and the court is not at liberty to supply this fatal omission. Such a statutory bond, properly returned forfeited as provided by statute, has, by virtue of section 3783 of the Code, 'the force and effect of a judgment,' and this fact doubtless had influence in the former decision of this court, holding that such bonds should 'follow strictly the substance *** of the statute.' That this was a vital part of the condition of the bond cannot be questioned. Its omission, therefore, is a defect in the bond, depriving it of its statutory capacity, as it clearly does not follow strictly the substance of the statute."

When these utterances are construed in connection with the question presented and decided, all that they mean is that applying the rule of strict construction, none of the necessary essentials of a statutory bond will be supplied by intendment. 9 C.J. 32, § 51.

While the rule as to common-law bonds is that they should "be so construed, if possible, as to give force and effect and meaning to all the words and clauses used in the bond, and so as best to effect and carry into reasonable operation the reasonable intention of the parties." Taliaferro v. Brown, 11 Ala. 702; Whitsett v. Womack, use, etc., 8 Ala. 466; Planters' & Merchants' Bank of Huntsville v. William G. Hill et al., 1 Stew. (Ala.) 201, 18 Am. Dec. 39; Loeb et al. v. City of Montgomery, 7 Ala. App. 325, 61 So. 642; 9 C.J.§§ 52, 33.

The bond pleaded is good as a common-law bond, and, applying the rule of liberal construction, it clearly imports an obligation on the part of Rains and his sureties to deliver the property to the plaintiff within thirty days after the termination of the detinue suit in a judgment for the plaintiff, and to pay all costs and such damages as had resulted from the...