Wilkins v. Willimon
| Decision Date | 12 February 1924 |
| Docket Number | 11424. |
| Citation | 122 S.E. 503,128 S.C. 509 |
| Parties | WILKINS v. WILLIMON ET AL. |
| Court | South Carolina Supreme Court |
Petition for Rehearing Dismissed April 21, 1924.
Appeal from Common Pleas Circuit Court of Greenville County; C. M Efird, Special Judge.
Action by Mrs. N.W. Wilkins against W. M. Willimon and R. C Willimon. From a judgment for plaintiff entered on an order striking out the answer, the last-named defendant appeals. Judgment and order reversed and case remanded, with directions.
J Frank Eppes and T. H. Munro, both of Greenville, for appellant.
Brown & Boyd, of Spartanburg, for respondent.
Action upon a redelivery bond executed by W. M. Willimon as principal and R. C. Willimon as surety, in a claim and delivery proceeding brought by Mrs. Wilkins against W. M. Willimon, for the recovery of the possession of an automobile covered by a mortgage from him to her, which was past due. In that proceeding, Mrs. Wilkins in her affidavit valued the car at $2,500, and gave a bond under the statute in the sum of $5,000. The car was seized by the sheriff, and thereupon W. M. Willimon executed a bond as provided in section 474 of the Code of 1922, with R. C. Willimon as surety, in the sum of $5,000, conditioned upon "the delivery of said property to the plaintiff, if such delivery be adjudged, or for the payment to the plaintiff of such sum as may be recovered against the defendant in this case."
The original claim and delivery action of Mrs. Wilkins against W. M. Willimon was tried at September term, 1921, and the following verdict was rendered by the jury: "We find for the plaintiff two thousand three hundred and seventeen and 32/100 ($2,317.32) dollars." It is conceded that this represented the amount due by W. M. Willimon to Mrs. Wilkins upon the note which was secured by the chattel mortgage, with interest and attorney's fees as called for in the note. Upon this verdict judgment was entered against W. M. Willimon. The surety R. C. Willimon was not a party to that action.
The judgment not having been paid, the plaintiff Mrs. Wilkins instituted the present action against W. M. Willimon and R. C. Willimon, on January 12, 1923, upon the redelivery bond above described. The complaint alleges the facts as substantially set forth above, and particularly stated that the redelivery bond was executed "in accordance with the statute with reference to claim and delivery proceedings."
The only defense set up in the answer of R. C. Willimon, the surety, which we deem necessary to consider, is that the plaintiff in the original claim and delivery action having elected to take a verdict against W. M. Willimon for the amount due upon the note secured by the mortgage, instead of a verdict for the recovery of the possession of the car or for its value in case delivery could not be had, with damages for the detention, the judgment entered upon such verdict does not represent that for which the surety stood obligated, and that he is not responsible upon his bond therefor.
The plaintiff moved before the Hon. C. M. Efird, special judge, presiding at the February term of court, 1923, for an order striking out the answer of R. C. Willimon as frivolous, irrelevant, redundant, and constituting no defense to the plaintiff's cause of action. The presiding judge took the matter under advisement, and later filed an order granting the plaintiff's motion and allowing judgment against the defendants for the amount prayed for in the complaint, $2,335.67, with interest from September 21, 1921, that amount being composed of the judgment in the original claim and delivery proceeding, $2,317.32 and the costs $18.35. Thereafter judgment was duly entered for said sum in accordance with the order, and the defendant has appealed.
The appeal presents squarely this question, and it is the only one we deem proper or necessary to consider:
Where, in an action of claim and delivery of personal property covered by a mortgage, the plaintiff recovers a judgment, not for the recovery of the property or for its value, with damages for the detention, but for the amount of the debt secured by the mortgage, is the surety upon a redelivery bond given by the defendant responsible in an action upon the bond for such judgment?
It will be particularly noted that the record shows that the plaintiff in the original proceeding "claimed the immediate delivery" of the property and gave bond according to the statute; that the sheriff seized the property; that the defendant exercised his right to a redelivery of it under section 474 and was in possession of it at the time of the trial. This is important, as will be seen, in determining the proper form of verdict and judgment, under these circumstances, in the event that the plaintiff prevails before the jury, in the original claim and delivery action.
Sections 542 and 600 of the Code must not be confused. The one regulates the form of the verdict in claim and delivery; the other the form of the judgment; the one is mandatory; the other directory and optional, as the circumstances may require. The form of the verdict and the form of the judgment vary according to the proceedings which may have been taken in reference to the possession of the property and to the conclusion arrived at by the jury upon the merits of the case.
The record in a case of claim and delivery will necessarily show: (1) That the plaintiff has given bond and secured possession of the property, retaining the same, the defendant not having exercised his right of redelivery under section 474, but by his answer claiming a return of the property; or (2) that the plaintiff has not given bond and thereby secured possession of the property, the same remaining in the possession of the defendant; or (3) that the plaintiff has given bond and the defendant has secured a return of the property from the sheriff under section 474.
Condition 1: Where the plaintiff has given bond and secured the possession of the property, retaining the same, the defendant not having exercised his right of redelivery under section 474, but by his answer claiming a return of the property.
Whether the verdict be in favor of the plaintiff or of the defendant, section 542 is mandatory, that "the jury shall assess the value of the property." A verdict, therefore, in favor of the plaintiff, should be:
"We find for the plaintiff the right to the possession of the property described in the complaint, the value of which is assessed at ($______) dollars, together with ($______) dollars damages for the wrongful detention thereof by the defendant" (if such damages be alleged and proved).
Under section 600 the judgment entered upon this verdict should conform to the verdict.
A verdict for the defendant should be:
"We find for the defendant the recovery of the possession of the property described in the complaint, the value of which is assessed at ($______) dollars, together with ($______) dollars damages for the wrongful taking and detention thereof by the plaintiff" (if such damages be alleged and proved).
Under section 600, the judgment entered upon this verdict should be:
"That the defendant recover of the plaintiff the possession of the property described in the complaint, or in case delivery cannot be had for its value ($______) dollars, together with ($_____) dollars damages for the wrongful taking and detention thereof by the plaintiff." Finley v. Cudd, 42 S.C. 121, 20 S.E. 32; Robbins v. Slatterly; 30 S.C. 328, 9 S.E. 510; Bardin v. Drafts, 10 S.C. 493; Thompson v. Lee, 19 S.C. 489; Archer v. Long, 32 S.C. 171, 11 S.E. 86.
Condition 2: Where the plaintiff has not given bond and thereby secured possession of the property, the same remaining in the possession of the defendant.
If the verdict should be in favor of the plaintiff, section 542 is mandatory that "the jury shall assess the value of the property"; and in such case the verdict should be:
"We find for the plaintiff the recovery of the possession of the property described in the complaint, the value of which is assessed at ($_____) dollars, together with ($______) dollars damages for the wrongful detention thereof by the defendant" (if such damages be alleged and proved).
Under section 600, the judgment entered this verdict should be:
"That the plaintiff recover of the defendant the possession of the property described in the complaint, or in case a delivery thereof cannot be had, for its value ($______) dollars, together with ($______) dollars damages for the wrongful detention thereof by the defendant." Bossard v. Vaughn, 68 S.C. 96, 46 S.E. 523.
If the verdict should be in favor of the defendant, it appears from the case of Finley v. Cudd, 42 S.C. 121, 20 S.E. 32, that under these circumstances it would not be necessary for the jury to assess the value of the property, and that a verdict in this form would be sufficient: "We find for the defendant the right to the possession of the property described in the complaint"; the property always having been in the possession of the defendant no damages could be allowed for taking or detention. Under section 600 the judgment entered upon this verdict should conform to the verdict.
Condition 3: Where the plaintiff has given bond, and the defendant has secured a return of the property from the sheriff under section 474.
If the verdict should be in favor of the plaintiff, section 542 is mandatory that "the jury shall assess the value of the property," and in such case the verdict should be:
"We find for the plaintiff the recovery of the possession of the property described in the complaint, the value of which is assessed at ($_____) dollars, together with ($_____) dollars damages for the wrongful...
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