Traweek v. Heard

• Decision Date: 12 January 1893
• Citation: Traweek v. Heard, 97 Ala. 715, 12 So. 166 (Ala. 1893)
• Parties: TRAWEEK, SHERIFF, ET AL. v. HEARD.
• Court: Alabama Supreme Court

12 So. 166

97 Ala. 715

TRAWEEK, SHERIFF, ET AL. v. HEARD.

Supreme Court of Alabama

January 12, 1893

Appeal from circuit court, Butler county; John P. Hubbard, Judge.

Action by George P. Heard against I. Y. Traweek, sheriff, and others, for breach of his bond. Judgment for plaintiff. Defendants appeal. Affirmed.

The plaintiff alleged the failure on the part of Traweek, as sheriff of Butler county, to faithfully discharge the duties of his office, and assigns as the principal breach that he failed to take a statutory replevy bond from the defendants in the detinue suit brought by the plaintiff in this action George P. Heard, against J. H. Hicks et al., as he was required to do by the indorsement made on the summons and complaint by the clerk. The defendant demurred to the complaint, and most of the grounds of his demurrer were sustained. The practical effect of the rulings on the demurrer was that, under the complaint, the only damage that could be recovered was for the costs of the detinue suit.

J. F Stallings, for appellants.

J. C Richardson, for appellee.

HARALSON J.

The indorsement of the clerk on the summons in the case of George P. Heard (the plaintiff in this case in the court below) v J. A. Hicks et al. required the defendant I. Y. Traweek, as sheriff of Butler county, to take the property mentioned in the complaint into his possession, unless the defendant gave bond, payable to the plaintiff, in double the amount of the value of the property, with condition that, if the defendants were cast in the suit, they would, within 30 days thereafter deliver the property to the plaintiff, and pay all costs and damages which might accrue from the detention thereof. The indorsement of the clerk followed, strictly, the requirements of section 2717 ^[1] of the Code. The sheriff seized the property mentioned in the complaint, except two steers, and delivered it to the defendants, upon their giving bond, which answered the mandate of the clerk, as indorsed on the summons, and as required by the statute, except that it did not contain the condition "and pay all costs and damages which may accrue from the detention thereof." This was a defect in the bond, which deprived it of its statutory capacity. Such bonds, to be statutory, must follow strictly the substance, and it would be well, in practice, always the letter, of the statute, and not contain conditions other or fewer than the statute requires. Adler v. Potter, 57 Ala. 571. The sheriff was not authorized to take any other than a statutory bond, which, if the defendants were cast in the suit, and failed to comply with its conditions, had the force and effect of a judgment, on which execution might issue against...