U. S. Fidelity & Guaranty Co. v. Frick Co.

The agreement of the parties embodied in the judgment entered on January 9, 1931, and receiving the sanction of the court, was that the plaintiff have judgment for the property sued for, or its alternate value of $2,000; that the balance due the plaintiff on the contract under which it claimed title was ascertained and assessed at $1,747.

These recitals in the judgment of the court, as first entered, sufficiently evinced plaintiff's right to recover the property and the right of the defendant to deliver the property replevied, and pay the costs in discharge of the liability assumed by the bond, although the formal part of the judgment was only for the balance ascertained to be due on the contract under which plaintiff claimed title.

The right to deliver the property in discharge of the obligation of the bond is a right conferred on the defendant; and the surety on the bond, who insists on the right to deliver, stands in the defendant's shoes, and, if the defendant has lost the right to deliver, the bond is liable.

The failure of the defendant to comply with the statute and the terms of the bond justified the indorsement of forfeiture by the sheriff, and the subsequent issuance of execution armed the plaintiff with the right to refuse acceptance of the property when tendered thereafter, and to insist upon the payment of the ascertained balance due. Code 1923, §§ 7394, 7401; Collier v. White, 97 Ala. 615, 12 So. 385.

The effect of the subsequent amendment of the judgment nunc pro tunc was to embody in the judgment a formal adjudication of plaintiff's right to recover the property, a right which was evidenced by the first judgment entry.

We are not of opinion that the court erred in overruling the motion to quash, and the judgment of the circuit court is ordered affirmed.

Affirmed.

ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.