Donaldson v. Wilkerson

MAYFIELD, J.

The action is on a replevy bond, given in an attachment suit, as is authorized by section 2955 of the Code of 1907. The property was not replevied by the defendant, but by a stranger, as the statute authorizes. The bond, however, recited that this stranger was the defendant, and was conditioned as foil an action against the stranger, and not as for one against the real defendant.

A judgment was offered in evidence, showing that the real defendant had failed in the attachment suit, and that the property' replevied had not been returned within 30 days from the rendition of that judgment. There Avas no evidence that the stranger Avho replevied the property, and who was designated in the bond as defendant, had failed in any suit. The trial court- gave the affirmative charge for the defendants, which resulted in a judgment accordingly, from Avhich judgment the plaintiff prosecutes this appeal.

We are of the opinion that the trial court ruled correctly. There could be no recovery on the bond sued on, for the reason that no breach thereof was shoAvn. It may be that the bond should have recited that it was given in a suit against the real defendant, and not in a suit against the stranger Avho replevied the property. It may also be true that the bond should have been conditioned upon the failure of the real defendant, and not upon the failure of the stranger Avho replevied the property; but the ansAver to this is that the bond was not so written and did not so provide and that the court could not reform it in this suit, nor give effect to it as if it had been properly so conditioned.

It is contended by appellant that, though the bond may not be effective as a statutory replevy, yet it may be given effect as a common-law obligation. This is true as to many bonds or obligations, intended as statutory bonds, but which for some reason fail to be effective as statutory bonds, but do impose common-law obligations which may be given effect in actions thereon against the principals and sureties. This principle, however, cannot aid the plaintiff in this action, because he does not show a breach of the condition of the instrument, whether it be a statutory bond or a common-law obligation.

Whatever remedy, if any, the plaintiff may have, it is not an action on this bond, of which, as it now appears, there has been no breach.

Affirmed.

Anderson, C. J., and Somerville and Thomas, JJ., 'concur.