Southern Orchard Planting Company v. Gore

• Decision Date: 20 May 1907
• Citation: 102 S.W. 709,83 Ark. 78
• Parties: SOUTHERN ORCHARD PLANTING COMPANY v. GORE
• Court: Arkansas Supreme Court

102 S.W. 709

83 Ark. 78

SOUTHERN ORCHARD PLANTING COMPANY v. GORE

Supreme Court of Arkansas

May 20, 1907

Appeal from Sevier Circuit Court; James S. Steel, Judge; affirmed.

Affirmed.

J. S Lake, for appellant.

In replevin, where bond is not executed by the defendant within two days, it is the duty of the constable or sheriff to deliver the property to the plaintiff. Kirby's Digest § 6863. From the moment of seizure by the sheriff or constable the property taken in replevin is in custodia legis, and the officer serving the process is responsible for its safekeeping. 77 Ark. 497; Cobbey on Rep. § 706; 10 Pet. (U.S.) 40. After seizure of the property, the officer became privy to the prosecution of the suit, and could only exempt himself from liability for loss of the property by showing that he had made such disposition thereof as the law directs, or that its loss was not due to his negligence. 2 Mich. 272; 13 Johns. (N. Y.) 580. The defendant having failed to give bond, the law contemplates that the property remain after seizure in the hands of the sheriff until turned over to the plaintiff. Kirby's Digest, supra; 68 Ark. 320. And he is liable for its custody until bond is given by the defendant. Cobbey on Rep. § 711. Plaintiff was entitled to its possession. Id. §§ 712, 721.

Otis T Wingo, for appellees.

1. The complaint is insufficient in that it does not allege that the appellant, as plaintiff in the replevin suit, executed and tendered to the appellee a bond as required by the statute. 14 Ark. 264; Kirby's Digest, § 6857; 52 Ark. 360.

2. It is also insufficient in that it does not allege that appellant prosecuted its action to final judgment, and that such judgment was in its favor. Cobbey on Rep. § 712; 68 Ark. 325; 11 Cal. 262; 9 Metc. 440; 10 Pet. 400.

MCCULLOCH, J. HILL, C. J., dissenting.

OPINION

MCCULLOCH, J.

This is an action instituted by appellant against R. B. Gore and the sureties on his official bond as constable to recover the value of a bale of cotton alleged to be the property of the plaintiff. It is alleged in the complaint that the plaintiff had instituted an action in replevin before a justice of the peace against one Harris for the recovery of a bale of cotton, and had caused an order of delivery to be issued in due form and delivered to the constable. The complaint then proceeds as follows:

"That, in the execution of said order of delivery, the said R. B. Gore, as constable aforesaid, located and seized said bale of cotton, and thereafter negligently and carelessly permitted the same to be taken from his custody as such constable and removed and concealed, so that the same could not be and was by said constable not delivered to the plaintiff, as required by law. That, by reason of said negligent conduct of said constable, the said cotton was lost to plaintiff, and it was deprived of the value thereof, to its damage in the sum of $ 45, the value of said cotton, and the further sum of $ 10 costs and other expenses incurred."

The court sustained a demurrer to this complaint, and the plaintiff appealed.

It will be observed that the complaint contains no allegation to the effect that the plaintiff in the original suit had given bond in accordance with the statute for the delivery of the property in controversy. And it is urged that the complaint was defective in this respect. We think that position is well taken. The statute (sec. 6857, Kirby's Digest) provides that "the order shall not be complied with by the sheriff until there has been executed in his presence by one or more sufficient sureties of the plaintiff a bond to the defendant to the effect that the plaintiff shall duly prosecute the action, and that he shall perform the judgment of the court," etc. A plaintiff in a replevin suit has no right, therefore, to demand execution of an order of delivery, or, even where the officer has taken the property in his possession, to demand a delivery of it to him without having given the bond prescribed by law. This court in State v. Stevens, 14 Ark. 264 said that in a replevin suit the officer ...