Elrod v. Hamner , 120 Ala. 463 ( 1898 )

TYSON, J.

This action was commenced by appellee against appellant, who was a constable, and the sureties upon his official bond.

Ill the first count of the complaint it is alleged that upon the seizure by defendant, under a writ of detinue, of 1,000 pounds of lint cotton, “which was at the time in the possession of plaintiff [appellee] and bona fide claimed by him as his property,” plaintiff, within five days thereafter, tendered “a proper forthcoming bond to said constable as provided by section 2717 of the Code of Alabama, and made demand of said constable to deliver back to plaintiff the said cotton seized and held as aforesaid, and that said constable refused, neglected and failed to do so.”

The second count charges that the plaintiff in the detinue suit, one Holman, having failed to give a forthcoming bond within five days after the time allowed by statute to the defendant for the giving of such bond had expired, the constable “did fail, neglect aud refuse to deliver back said cotton to the plaintiff in this action.”

In an action for the recovery of personal property in specie, if the plaintiff makes the affidavit and bond required by the statute, the officer executing the writ is required to take the property into his possession unless the defendant gives a forthcoming bond. — Code of 1886, § 2717; Code of 1896, § 1474. If the defendant neglects for five days to give such bond the property must be delivered to the plaintiff, on his giving a forthcoming bond with sufficient surety. If the plaintiff fail to give such bond for five days after the expiration of the time allowed the defendant, the property must be returned to the defendant. — Code of 1886, § 2718; Code of 1896, § 1475. If no bond is given by either of the parties within the time prescribed by the statute, the status of the property is the same as if no affidavit and bond had been made in the first instance, and in the event of a recovery by plaintiff a writ may issue against the defendant for the seizure and delivery of the property to satisfy the judgment. The duty of an officer who has taken property into possession under a writ of detinue, to return it to defendant, if he gives the required bond within five days after seizure, or where such bond is not given, upon failure of plaintiff to give the bond as provided by the statute, is imperative, and his failure- to do so is an official misfeasance, for the damages resulting from whicía he and the sureties upon his official bond are liable.—McElhaney v. Gilleland, 30 Ala. 183; Gay v. Burgess, 59 Ala. 575; Thorn v. Kemp, 98 Ala. 417; Burgin v. Raplee, 100 Ala. 433; Couch v. Davidson, 109 Ala. 313. When sued for the breach of such duty he cannot set up in defense of the action or in mitigation of damages, that the defendant in the detinue suit did not own the property, or that he had only a qualified interest therein, or that it was subject to a mortgage. As said in Gay v. Burgess, 59 Ala. 575, “the duty imposed by the statute is plain and simple — it is restoration of possession to the defendant. The officer has no option, and it is not his province to inquire, nor has he authority to determine, who is the owner whether plaintiff or defendant. It Would be against the policy of the law to suffer him to escape the consequences of the wrong by setting up the title of the plaintiff in the action of detinue, with which only his wrong connects him. If the defendant shall recover of him the value of the property of which he is not the real owner, he has involved himself in the loss by his disobedience of the statute and a wanton abuse of the authority of the law.” This doctrine is reaffirmed in Thorn v. Kemp, 98 Ala. 425.

What has been said above disposes of the first, second and third grounds of demurrer to the first and second counts interposed by defendant Elrod, which were properly overruled, and also demonstrates that the rulings of the court upon the sufficiency of defendants’ pleas, except the sixth, was correct. The demurrer to the first count on the ground that “it fails to show that plaintiff tendered to the constable a bond with sufficient surety in double the value of the property, payable to the plaintiff, T. L. Holman, with condition that if the defendant was cast in the. suit he would, within 30 days thereafter, deliver the property to the plaintiff T. L. Holman, and pay all costs and damages which may accrue for the detention thereof,” is substantially in the words of the statute requiring defendant to tender a sufficient bond before he is entitled to have the property delivered to him. The breach of duty complained of in this count cannot exist unless there is a tender of a bond of proper amount, sufficient surety and conditioned as provided by the statute. Hence the complaint must aver facts from which the inference necessarily follows that a bond such as the statute prescribes was tendered. The averment is ‘ ‘the plaintiff tendered a proper forthcoming bond to said constable as provided by section 2717 of the Code of Alabama.” We think that the only reasonable inference to be drawn from this language is that defendant not only tendered a forthcoming bond, but it was for the proper amount, sufficient surety and conditioned as provided by the statute. The demurrer was therefore rightly overruled.

The demurrer to the second count on the ground that it failed to aver that defendant in the detinue suit “executed, tendered or delivered to said constable a bond as required and authorized by section 2717 of the Code” is without merit, since to fix the liability of, and show a cause of action against, the defendant it was only necessary to aver a failure of the plaintiff in the detinue suit to give a forthcoming bond within the time fixed by the statute ; failing in this it was the duty of the constable to return the property to the defendant in said suit The other grounds of demurrer to this count of the complainant are equally as untenable, and there was no error in overruling them.

This brings us to a consideration of the sufficiency of the sixth plea to the second count, which invokes the defense, that it was necessary after the expiration of the ten days from date of seizure for defendant in the detinue suit to demand of the constable the delivery of the property. In order to sustain it, we will be impelled to interpolate into the statute the words “after demand.” The clause of the statute as written is “if the plaintiff fail to give such bond for five days after the expiration of the time allowed the defendant, the property must be returned to the defendant.” There is no ambiguity in the language. The officer must retain possession for ten days after seizure unless a bond is given by one of the parties to the suit, and at the expiration of the ten days the statute commands him to return it to defendant, and a retention by him after that time was without authority, illegal and a violation of his duty to the defendant. The demurrer was properly sustained.—Hall v. Perryman, 42 Ala. 122.

We do not deem it necessary to further consider the pleading in the cause, since there is no evidence in the record to sustain those parts of pleas 1 and 2 remaining after the motion to strike was granted by the court below, and the replication and rejoinder théreto.

The only remaining question to be determined is whether the evidence made out the plaintiff’s case under either count of the complaint. The proof shows that on the 5th day after the seizure of the cotton the plaintiff in the detinue suit gave a forthcoming bond signed by himself alone without any sureties, and that after the expiration of ten days from the date of the seizure the bond was signed by two sureties. This was not a compliance with the statute, and did not authorize the constable to deliver the property to the plaintiff. ( The evidence is without dispute, therefore, that a forthcoming bond was not given within such time as to deprive the plaintiff in this action of his right to have the cotton returned to him.

The judgment of the circuit court is affirmed.