Mack Trucks of Arkansas, Inc. v. Yarbrough , 251 Ark. 618 ( 1971 )

Frank Holt, Justice.

The appellant instituted a replevin action to recover possession of a truck it had sold to appellee Walter Yarbrough who was in default on his payments. The appellant also sought judgment against him for the unpaid balance. A replevin bond was made by appellant in compliance with Ark. Stat. Ann. § 34-2105 (Repl. 1962). Appellee Yarbrough thereupon filed a redelivery bond for the purpose of retaining possession of the truck. Section 34-2109. However, the sheriff delayed redelivery of the truck to the appellee because he and the appellant were concerned as to the signatures of the sureties on appellee’s redelivery bond, as well as the sufficiency of the sureties with respect to the amount of the bond. Because of the delay and the refusal to redeliver the truck to Yarbrough, he filed a motion for a temporary restraining order to prohibit the sheriff from delivering the truck to anyone and, upon a hearing, that the sheriff be required to redeliver the truck to him. After a hearing, the court ordered that the sheriff should retain possession of the truck until he determined if the sureties signed the bond and were sufficient. The court further ordered; that in the event the sheriff was dissatisfied with respect to either contingency he should forthwith deliver the truck to the appellant; however, if the sheriff was convinced the signatures were proper and the security bond was sufficient, the sheriff was ordered to retain possession of the truck subject to the court’s further orders. On the same date of the hearing the sheriff made his investigation and notified the appellant and Yarbrough that the redelivery bond met with his approval.

About three weeks after the court’s order denying redelivery to Yarbrough, he filed an answer and counterclaim to appellant’s complaint and replevin action in which he alleged, inter alia, that he “is entitled to immediate possession of said truck as of the 19th day of September 1970 by virtue of a bond for redelivery filed with the sheriff” and “due to the fault of [appellant], said property has not been delivered to [appellee].” He also alleged that he was entitled to damages for being deprived of the use of the truck. Yarbrough renewed his request that he have immediate redelivery of the truck. The appellant, a few days later, filed its answer denying Yarbrough’s allegations and asked that his counterclaim be denied and that it should have “the relief prayed for in its original complaint,” which included the replevin action. About two months later the truck was substantially damaged by fire while it was in the sheriff’s possession pursuant to the original order of the court. Thereafter, following a trial on the merits of the issues, the court rendered judgment against appellee Yarbrough on the stipulated balance due on the indebtedness, plus interest and attorney’s fees, and ordered the truck delivered to thé appellant and that it be sold and the proceeds applied to the judgment. The court held that the sureties on Yarbrough’s redelivery bond were not liable and discharged them.

The only issue on appeal relates to the liability of Yarbrough’s sureties to appellant. Appellant asserts that the sureties on the redelivery bond should not be released merely because Yarbrough failed to regain possession of the truck; furthermore, the redelivery bond deprived appellant of repossession of the truck to which appellant was admittedly entitled; and that the court erred in holding that the sureties on the redelivery bond were not liable to appellant. In our view the trial court was correct in not imposing any liability upon these sureties.

The redelivery bond, entitled “Bond To Retain Property,” signed by the sureties, provided that “the defendant [appellee] in this cause, Walter Yarbrough, shall perform the judgment of the court in the above styled cause.” This is in accordance with the provisions of Ark. Stat. Ann. § 54-2105. The court found: “That such judgment should not be entered against these sureties for the simple reason that the redelivery bond did not effect the delivery. The sheriff did not give the truck to the defendant [appellee Yarbrough] and by court order has kept the truck himself.” In General Elec. Credit Corp. v. Bankers Comm. Corp., 249 Ark. 106, 458 S. W. 2d 143 (1970) we said:

“It must be remembered that an action in replevin is a special proceeding for the possession of property only, * * *. Our cases point out that damages for detention are but an incident to the right of return and that there cannot be a judgment for damages where there can be none for return. * * * Furthermore the cases point out that the sureties on a replevin bond can discharge their liability by returning the property to the person who was dispossessed.”

Ark. Stat. Ann. § 34-2109 provides that upon the execution of a redelivery bond, which was found acceptable by the sheriff in this case, “the sheriff shall restore the property to the defendant [appellee Yarbrough].” Here there was noncompliance with this statutory requirement.

In the case at bar the appellant caused possession of the truck to be removed from Yarbrough by a proper replevin bond. Yarbrough attempted to regain possession by a redelivery bond. Upon denial, he renewed his request in another pleading. In both instances it appears' that the appellant resisted his efforts. Thereafter, in holding Yarbrough liable to appellant for the unpaid balance on the damaged truck and that appellant couldn’t hold Yarbrough’s sureties liable, the court said: “So far as I can see it treats both of you exactly fair, it puts both of you in the same position. * * * As it turns out now, it perhaps would have been better for plaintiff [appellant] if the plaintiff had let defendant [appellee Yarbrough] take that truck under the redelivery bond and could now have judgment against the sureties, but at the same time he [appellant] didn’t want to do that.”

It follows that since the sheriff had possession of the truck and never restored it to appellee Yarbrough, from whom he took possession at the instance of appellant, the trial court was correct in discharging the sureties from any liability in the case at bar.

Affirmed.

Harris, C. J., and Fogleman and Jones, JJ., dissent.