Maas & Block v. Long , 70 Ala. 237 ( 1881 )

SOMERVILLE, J.

The main question raised in this case is, as to the proper amount for which execution should issue on a forfeited delivery bond, executed by a clavma/nt on the trial of the right of property, levied on by process of attachment.

The statute is plain, and free from doubt, when an execution is levied on personal property, and it is replevied, so to speak, by a claimant, who is not a party to the writ. Section 3344 of the present Code (1876) provides, in such cases, that if judgment is rendered against the claimant, after.executing bond on trial of the right of property, and lie fail to deliver the property to the sheriff within thirty days thereafter, to satisfy the execution of the plaintiff, the sheriff must indorse the 'baa.á forfeited ¡ “ and the clerk must thereupon issue an execution against all the obligors therein, for the amount of the judgment of the plaintiff, if that is less than the value of the property as assessed by the jury, or for the a/rrunmt of such assessed value, if less than the amount of the judgment; also, for the damages, if any were assessed, and the costs of the trial of the right of property.” The amount of such execution, in other words, is the assessed value of the property replevied by the claimant, not to exceed, in. any event, the amount of the plaintiff’s judgment, besides the assessed damages and costs.

Section 3290 of the Code manifestly adopts the same rule in attachment cases, where the property attached is claimed by a person not-a party to the suit. It provides for the giving of bond, and making affidavit, as in cases of trial of right of property when levied on under execution, and requires that, upon the return of the bond and affidavit by the sheriff, with the writ of attachment, “ the same proceedings must he had as in other trials of right of property, except that-the sheriff must return the original attachment to the proper county.” The proceedings required to be had on trials of right of property are found embodied in sections 3341-3350 of the Code, and relate to levies on personal property under executions. Within this chapter of the Code is included section 3344, the one above alluded to, as establishing the rule in execution cases. If the matter rested here, there could be no room, for controversy. The rule in exemption and attachment levies would obviously be the same.

The difficulty arises from the phraseology of section 3291 of the Code, as it read before the amendatory act of March 1st, 1881 (Acts 1880-81, pp. 54-55), which was clearly designed to obviate the a]>parent, if not actual repugnancy presented. The latter section reads as follows: “ § 3291. When property replevied, or which has been delivered to a claimant, is not delivered with thirty days after judgment against such claimant and against the defendant in attachment, it is the duty of the sheriff to return the bond forfeited; and execution must issue thereon against the principal and sureties-on such bond, for the amount of the judgment and costs.” The same statute occurred, in like words, in the Code of 1861, as section 2966, and in the Code of 1852, for the first time, as section 2538. It was, no doubt, an erroneous condensation of previous statutes as made by the codifiers in their work of abridgment. — See Clay’s Digest, 213, §§ 63-64. Be this as it may, we are of opinion, that the only possible way of giving any reasonable operation to each of the several sections under discussion, is to limit the rule laid down in section 3291 to replevies of property by defendants in attachment, just as section 3215 applies it to defendants in execution ; and, in like manner, to apply the rule prescribed in sections 3344 and 3290 only to replevies by ‘elairroconts who are not parties to the writ. This is more in accordance with the spirit of our entire statutory system governing the subject, and better harmonizes with the policy of recent legislation, as shown in the amendatory act of March 1, 1881, supra, which, in view of. present doubts, may be regarded in the light of legislative construction. This view has the additional advantage of being supported by the highest considerations of natural justice and equity, which should ever constitute beacon lights of judicial interpretation.

Our conclusion is, that when the execution issues on a forfeited claim bond, in cases of this character, involving friáis of the right of property, it should be for the assessed value of the property replevied by the claimant, not to exceed, in any event, the amount of plaintiff’s judgment, besides the assessed damages and costs. It is only where the property levied on is replevied by a defendant in execution or attachment, that the execution, on a forfeiture of the replevin bond, runs against the obligors for the whole amount of the judgmeovt and costs. Code, §§ 3215, 3291. This was the view of the court below, in which we fully concur.

This is, in our judgment, a clear case for equitable relief. There were three several attachments levied on the property in question, and -as many forthcoming bonds executed by Block Bros. & Co., for whom the appellees, Long, are sureties. The appellees were not parties to these proceedings, and are not concluded by them. It is necessary to adjust the priorities of the attaching creditors, and to settle in one suit matters of litigation involving a multiplicity of actions at law- To these ends, the powers of a court of equity are alone fully adequate.—Babcock v. Williams, 9 Ala. 150.

We find no error in the record, and the decree of the court below is affirmed.