Alabama Great Southern Railroad v. Queen City Electric Light Co. , 121 Ala. 300 ( 1898 )

■ ■ SHARPE, J.

— By the judgment rendered in the claim suit’ only fifty-eight tons of the iron for which the claim .bond was given was found liable to the appellee’s attachment. The claim bond had no relation to other attachments that may have been levied on the property, and the obligation of the bond was to have forthcoming the property found liable to the appellee’s attachment .alone. No description is given in the judgment of the iron so found liable, and it was impossible for the appellant, as it is impossible for the court to. identify the particular iron mentioned in the judgment as distinguishable from other iron mentioned in the bond.

The obligation so far as it relates to the delivery of property was sufficiently performed in the delivery to . the sheriff within thirty days from the judgment of iron ■to. the amount of fifty-eight tons out of the iron mentioned in the bond. The delivery in excess of that amount was probably on account of other attachments levied- upon the same property, but such excess is not here involved.

If the claimant or its sureties made proper delivery to the sheriff of the property condemned and covered by their bond then the condition of the bond so far as it required the forthcoming of property was satisfied and .that fact is sufficiently shown by the petition. The delivery of property, however, did not prevent the forfeiture of the bond without performance also of its further .stipulation for the payment of costs.

The statute provides that if the property be not delivered and the costs of the trial paid within thirty days the officer- must indorse the bond forfeited and “execution must issue thereon against the obligors in the bond for the amount of the plaintiff’s judgment if that .be less than the assessed value of the property or for the assessed value if that is not.greater than the amount of the judgment and also for the damages if any were assessed and tlie costs of tbe trial of tbe right of property. And in tbe event tbe claimant delivers tbe property and fails to pay damages and costs witbin thirty days, execution must issue for such damages and costs only.” — Code, § 4144. No damages having been assessed in this case tbe costs should have been paid by tbe claimant or its sureties and if they were not paid tbe bond was subject to forfeiture, and execution might • properly have issued against tbe obligors for costs alone. Tbe petition does not aver with particularity tbe payment of costs but it does aver in general terms that petitioners “have complied with the obligations resting upon them as obligors in said bonds.” If it be held that such averment was too general as relating to payment of costs still the petition was not subject to tbe demurrer. . Tbe execution here issued was for an amount largely in excess of petitioner’s liability and ought therefore to be superseded. Tbe judgment which tbe appellee obtained against tbe Furnace Company in tbe attachment suit Avas for $125.16. The damages being-assessed in tbe claim suit the execution should not have exceeded that sum besides interest and costs, even if there bad been no delivery of property. It appears to .have been issued for $464, the assessed value of tbe fifty-eight tons of iron, Avhich, as we have seen by tbe statute, is to be done only Avhen tbe property is not delivered and Avhen the assessed value is not greater than tbe amount of tbe judgment.

Tbe judgment sustaining the demurrer must be re- , versed and' tbe cause will be remanded.