Securities Inv. Co. v. Pioneer Sales Co.

• Decision Date: 04 April 1942
• Citation: 160 S.W.2d 895,178 Tenn. 360
• Parties: SECURITIES INV. CO. et al. v. PIONEER SALES CO.
• Court: Tennessee Supreme Court

160 S.W.2d 895

178 Tenn. 360

SECURITIES INV. CO. et al. v. PIONEER SALES CO.

Supreme Court of Tennessee.

April 4, 1942

Error to Circuit Court, Maury County; W. B. Turner, Judge.

Action on a replevin bond by the Pioneer Sales Company against the Securities Investment Company and another. A judgment dismissing the action was reversed by the Court of Appeals and defendants bring certiorari.

Judgment of Court of Appeals reversed and that of trial court affirmed.

Albert Williams, Joe Brown Cummings, and Kenneth Harwell, all of Nashville, for plaintiff in error, Securities Inv. Co.

J. M Ingram, of Columbia, for defendant in error, Pioneer Sales Co.

CHAMBLISS Justice.

Securities Investment Company replevined a car from Pioneer Sales Company, executing a replevin bond conditioned to abide by and perform the judgment in the premises. The trial court gave plaintiff a judgment. The Court of Appeals reversed and dismissed the action. Its judgment reads:

"This cause coming on to be heard upon a transcript of the record from the Circuit Court of Maury County, assignments of error, reply brief and argument of counsel, upon consideration whereof the Court is of opinion that in the judgment of the Court below there is error.

"It is therefore ordered and adjudged by the Court that the judgment of the Court below be reversed, the suit dismissed and that the Securities Investment Company will pay all of the costs of this cause, for which let fieri facias issue."

It will be seen that this judgment did not award possession of the car to the defendant company; no remand was ordered, nor was any provision made in the judgment for damages for detention. The costs were paid as adjudged. Later, Pioneer Company made application to the Court of Appeals for an amendment of the judgment so as to award a return of the car and damages for detention, which was declined on the ground that it came too late, the court having lost jurisdiction of the case.

The instant action was thereafter brought by Pioneer Company on the replevin bond against the principal and surety, seeking damages for detention and conversion of the car. The defendant plead nil debit, non-assumpsit, and not guilty, and also filed a special plea of res adjudicata. The trial judge dismissed the action, apparently upon the theory that the Pioneer Company should have prosecuted this branch of the action, that is, sought recovery on the bond, in the original case. The Court of Appeals, opinion by Howell, J., reversed and held that damages on the replevin bond could be sued for in this separate action. We granted certiorari and argument has been heard.

The judgment which our statute, Code Section 9307, provides that the "justice shall render" against the plaintiff and his sureties on the bond in favor of a successful defendant, reads as follows: "Judgment for defendant against plaintiff and sureties shall embrace what.--If the justice find the issue in favor of the defendant and adjudge the property replevied to belong to the defendant, or the plaintiff dismisses or fails to prosecute his suit, the justice shall render judgment against the plaintiff and his sureties on the replevin bond that the property replevied be returned to the defendant, or on failure to do so, that the defendant recover of plaintiff and sureties on replevin bond the value of the property replevied, with interest thereon and damages for the detention of the same, the value of the property and the damage to be assessed by the justice trying the case. The justice may, in a proper case, give exemplary damages in favor of either party, and in all cases where the plaintiff fails to prosecute his suit with effect, the justice may make such valuation as will be likely to effect the return of the property to the defendant if the character of the property is such as to make the return of the specific property important. (1851-52 ch. 32, sec. 7; 1905, Ch. 31.)"

As has been seen, no such judgment was rendered, or asked, at the time. This independent action was brought on the bond some months later.

Petitioner in this court insists that the right to maintain a subsequent and independent suit on a replevin bond is limited to those cases in which the original plaintiff in replevin dismisses his suit, or in which the court proves to be without jurisdiction. The theory is that in neither of these cases does the defendant, whose property has been taken from him in replevin, have opportunity in the original action to proceed on the bond. And another exception appears to be conceded, that is, where, as in Colby v. Yates, 12 Heisk. 267, 59 Tenn. 267, upon return of the property it proves to have been damaged while in possession of the plaintiff, of which the successful defendant had no knowledge prior to its return pursuant to the judgment providing therefor.

The rule appears to be well settled, subject to the exceptions above noted, that a subsequent and independent action may not be maintained on a replevin bond where, in the original action, the judgment in favor of the defendant goes no further than to dismiss the action and award costs against the plaintiff, the obligation of the bond being conditioned, as here, to abide by and perform the judgment of the court in the premises.

"When a successful party in replevin has failed to have a judgment entered for the return of the property, he cannot in an action on the bond recover as for a conversion." 23 R.C.L., p. 900. Further quoting this authority, "the liability of the obligor on a replevin bond is measured by the terms of the bond as applied according to the terms of the judgment entered, and not according to the verdict." The opinion in the case cited, Ihrig v. Bussell, 68 Wash. 70, 122 P. 608, 609, L.R.A.1917A, 1188, stating that "the authorities seem to be in accord upon the propositions," cites numerous cases so holding, among them Thomas v. Irwin, 90 Ind. 557; Vallandingham v. Ray, 128 Ky. 506, 108 S.W. 896; Vinyard v. Barnes, 124 Ill. 346, 16 N.E. 254; Chambers v. Waters, 7 Cal. 390; Clark v. Norton, 6 Minn. 412; Colorado Springs Co. v. Hopkins, 5 Colo. 206. The opinion quotes the following from 2 Sutherland, Damages, 42: "We are unable to perceive how a failure to return the property can constitute a breach in a case where there has been no judgment for a return. The undertaking is not a general one for the return of the property, but is an undertaking for the return in case it shall be so adjudged, and the contract of the surety is, therefore, restricted and limited by the terms of the instrument. The liability of the surety depends upon the judgment, for, unless a judgment is entered awarding a return, the case is not within the contract. To bring the case within the terms of the contract, it must be made to appear that the court had awarded a return. To hold the surety liable for a failure to return where no return had been adjudged would be to hold him in a case not within the spirit or letter of his undertaking."

A leading case, directly in point, is Rosen v. United States Rubber Co., 268 Mass. 403, 167 N.E. 655, 65 A.L.R. 1299, opinion by Rugg, C.J. There were two like actions disposed of by the opinion, "each against the principal and surety on a replevin bond." The headnote, in the language of the opinion, reads: "A simple final judgment for defendant in replevin, without more, carries in law no implication for the return of the property or the payment of damages."

Again says the court, "If the defendant in replevin was entitled to return of the merchandise, the time, place and forum for adjudication to that effect was at the trial of the action in replevin. Ashcroft...