Cobb v. Thompson , 87 Ala. 381 ( 1888 )

SOMERVILLE, J. —

The purpose of the petition is to supersede an execution summarily issued on a replevy or forthcoming bond executed by a defendant and his sureties, in an attachment proceeding before a justice of the peace, and returned by a constable as forfeited. — Code, 1886, §§ 3334-3341. The bond bore date October 28th, 1887, and was declared forfeited December 12th, 1887, on the ground that the replevied property had not been returned to the constable according to the condition of the bond.

If the undertaking is not a statutory bond — that is, if it .does not substantially conform to the requirements of the statute — and its defects are not cured under the provisions of section 3357 of the present Code, the summary remedies given by the statute for the enforcement of its obligations will not lie. The instrument will be good only as a common-law bond, and must be sued on as such.

A fatal defect in the undertaking, so far as concerns its conformity to the statute, is the time when the replevied property is to be returned to the constable, which is not only material, but of substance, and not mere form. The Code provides, where personal property, levied on under a writ of attachment issuing from a justice’s court, is replevied, it “must be delivered to the constable within ten days after judgment against the defendant, unless an appeal is prosecuted from the judgment; and on failure thereof, the constable must indorse the bond forfeited, upon which execution must issu6 against the obligors therein.” — Code, 1886, § 3341. Where the levy is under execution, the condition of the bond is, “to have the property forthcoming at twelve o’clock of the day, and at the place appointed for the sale.” Code, § 3354. The present case involves a levy under attachment, not execution. The condition of the delivery bond should, therefore, have been to deliver the attached property to the constable, within ten days after judgment against the defendant in attachment, unless an appeal should be prosecuted from the justice’s judgment.

The bond in the present case binds the obligors to return the attached property to the constable within tioenty days after judgment in the attachment suit. This is a material variance from the time fixed by the statute, which, as we have seen, is ten days. It is settled by the authorities, that a forthcoming bond, which provides for the delivery of property on a day different from the day prescribed by law, is not good as a statutory bond, but only as a common-law bond, and it can not be declared forfeited summarily by sheriffs or constables, as only statutory bonds can be.—Murfree on Official Bonds, § 384; Adler v. Green, 18 West Va. 201; Irvin v. Eldridge, 1 Wash. (Va.) 203; 1 Wade on Attach. §§ 195-197. The power to render such summary judgments, which involves a waiver of the right of trial by jury on the part of the obligors, is based on the contract of the parties that they will submit to such a remedy, provided the undertaking conforms to the statutory requirements. If it does not, they have the right to assume that the implied agreement is that it will be enforced only by the ordinary common-law remedies, and not by those summarily conferred by statute, and affixed only to statutory undertakings.

This defect is not, in our opinion, cured by section 3357 of the Code. While that section would seem to authorize a forthcoming bond to be approved by either a justice or constable, and might, therefore, operate to cure any defective approval of the undertaking, which more regularly should have been taken and approved by the officer making the levy, it goes no further than to cure defects of form, and not of substance. The defect of time here is clearly one of substance.

That a proceeding by certiorari or supersedeas is the appropriate remedy to quash a summary execution, issued on a forthcoming bond, illegally returned by a sheriff or constable as forfeited, is well settled. —Rhodes v. Smith, 66 Ala. 174; 3 Brick. Dig. 755, §§ 1-13; Gravett v. Malone, 54 Ala. 19; Dunlap v. Clements, 18 Ala. 778; 2 Brick. Dig. 465, §§ 1-33; Crenshaw v. Hardy, 3 Ala. 653. An appeal from the justice’s judgment, on his refusal to quash the execution, would clearly furnish no adequate remedy. The trial in the Circuit Court would be de novo, on the merits of the whole case, and would not reach any alleged defect in the forthcoming bond, or determine its character as a statutory or common-law undertaking.

The City Court erred in refusing to quash the execution against the appellants. The judgment is reversed, and the cause remanded, that the execution issuing on the bond may be quashed and vacated according to the prayer of the petition.

Eeversed and remanded.