Hoeffler Manufacturing Co. v. Casualty Co. of America ( 1916 )

ICeRWIN, J.

It is clear that the bond executed by the Casualty Company on delivery of the property to the defendant John F. Machajewski was not the bond required by sec. 2722, Stats. As will be seen from the statement of facts, the bond given was a bond to secure the sheriff on seizure of property under an attachment or execution.

Where property has been taken on writ of replevin, the statute, sec. 2722, provides that:

“At any time before the delivery of the property to the plaintiff the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and.for the payment to him of such sum as may for. any cause be recovered against the defendant. . .

No bond in compliance with this section was given,'and the bond given as a bond for return of the property to plaintiff, not being in compliance with the statute, was void, and no valid judgment could be rendered against the surety thereon in the replevin action. • •

The court could enter judgment against the Casualty Company in the replevin action only upon an undertaking, in compliance with the provisions of sec. 2122, Stats., namely, for the delivery of the property to the plaintiff if delivery be adjudged, and for the payment to plaintiff of such sum as may be recovered against the defendant. Drinkwine v. Eau Claire, 83 Wis. 428, 53 N. W. 673; Baxter v. Berg, 88 Wis. 399, 60 N. W. 711; Mayhem v. Mather, 82 Wis. 355, 52 N. W. 436; Woolridge v. Quinn, 49 Mo. 425; Dillard v. Nelson, 78 Ark. 237, 95 S. W. 460; I. L. Lamm Co. v. Peaks, 162 Wis. 289, 156 N. W. 194; Chaffee v. Sangston, 10 Watts, 265. It follows from what has been said that the judgment against the Casualty Company was properly set aside and vacated.

On the appeal of the defendant John F. Machajewski it is insisted that, the bond being void, the court had no power to enter the judgment. Mayhew v. Mather, 82 Wis. 355, 52 N. W. 436.

Where no bond is given for delivery of the property to defendant under sec. 2722, Stats., the judgment may be under sec. 2888, Stats., which provides that judgment for the plaintiff may be for possession or recovery of possession of the property, or the value thereof in ease a delivery cannot be had, and damages for detention; and when the property shall have been delivered to defendant under sec. 2722, judgment may be as aforesaid or absolute for the value of the property and damages for’detention, at the plaintiff’s option. In the instant case judgment was taken absolutely for the value of the property and not in the alternative as provided in sec. 2888, Stats. The judgment obviously was entered on the theory that the bond given by the Casualty Company was a valid bond under sec. 2722. But the bond being void and no bond having been given for return of the property to plaintiff, the judgment entered was erroneous and not the judgment authorized by statute where no bond was given under sec. 2722. Mayhew v. Mather, 82 Wis. 355, 52 N. W. 436; Baxter v. Berg, 88 Wis. 399, 60 N. W. 711.

It is also insisted that tbe court below erred in excluding evidence of the record of discharge of defendant from his debts in bankruptcy proceedings before the rendition of the judgment below. In the replevin action this record was immaterial, because it would not affect the plaintiff’s right to recover if it had a lien on the property under the mortgage which was the basis of plaintiff’s right to recover.

It further appears that after rendition of the judgment appealed from the plaintiff caused execution to be issued on the judgment and levy made upon the property which was the subject of the replevin suit, and the property advertised, offered for sale, and bid in by plaintiff. It is claimed by defendant John F. Machajewski that these acts by the plaintiff operated as a waiver of the plaintiff’s lien under its mortgage. We do not think the facts show a 'waiver of lien under the mortgage.

The difficulty arose from the error in entering judgment for the value of the property instead of a judgment in the alternative for possession, or value in case delivery could not be had. Since the plaintiff under the judgment taken could not obtain possession under the judgment, it obviously adopted, as a means of getting possession, an execution. The plaintiff obtained by an irregular proceeding what it would have obtained by a regular proceeding had it taken a proper judgment. So we think there was no waiver of plaintiff’s lien under its mortgage. But as the record now stands, the plaintiff has the property and also a judgment for its value, less what was applied on the judgment under the irregular sale on execution. We think, however, that complete justice may be done between the parties by entering a judgment under sec. 2888, Stats., for possession of the property, or the value thereof in case a delivery cannot be had, and six cents damages for detention and costs, and that the execution and all proceedings thereunder be set aside and annulled. This will leave the plaintiff all it was entitled to in the replevin action.

By the Oourt. — On the appeal of plaintiff from the order vacating tbe judgment against tbe Casualty Company of America of New York tbe order is affirmed with costs.

On tbe appeal of tbe defendant John F. Machajewski tbe judgment is reversed, and tbe cause remanded with instructions to tbe court below to enter-judgment as indicated in this opinion, with costs in this court in favor of defendant John F. Machajewski.