Bomer v. Meeks

Cook, J.,

delivered the opinion of the court.

This action was begun in the chancery court óf Warren county by appellee against S. E. Wall. The bill of complaint charges that complainant rented to S. E. Wall certain oxen and wagons for a term of eight months for the sum of four hundred and fifty dollars, payable in equal monthly installments; that Wall had not paid any of the installments, although all of same were long since due; that Wall had taken the property from Louisiana, where both resided, to Vicksburg, Mississippi, and was there attempting to dispose of same. The bill seeks to recover possession of the property and the rental value of same. To this end a writ of sequestration was prayed for and granted by the chancellor, and the sheriff sequestered the property.

Wall gave a forthcoming bond, with appellant and one Eitzgerald as sureties, under section 565, Code of 1906, and the property was delivered to him by the sheriff. The final decree was against Wall for the rental value of the property under the contract, and for the value of the property, and against Wall and the sureties on the forthcoming bond for the value of the property, eight hundred and sixty dollars, and for eight hundred dollars damages for the detention of the property. That part of the decree awarding damages for the detention of the property against the sureties on the forthcoming bond is the matter in issue here.

Appellee contends that the forthcoming bond is in form a bond by a defendant in replevin, under section 4223, Code 1906, and that the proper judgment for the plaintiff should be for the value of the property and damages for the wrongful detention thereof. Section 4233, Code 1906, provides for the judgment for plaintiff in a replevin suit where the defendant has executed a bond in the form prescribed by section 4223. It is true that the bond in this case is substantially in the form of a defendant’s bond in an action of replevin, but this is not an action of replevin. The scope of the decree in this case is controlled by section 565 of the Code, and not by section 4233.

The fight is over the decree against the sureties for damages for wrongful detention of the property delivered to their principal when the forthcoming bond was approved by the sheriff, and if this part of the decree is not authorized by section 565, Code 1906, appellant is entitled to a reversal. The statute controls,’ and the decisions of the courts of sister states upon their own statutes, or upon the practice in their several jurisdictions, are not controlling in the solution of the problem pre^ sented by this appeal. Unlike section 4233, section 565 does not limit the decree to be rendered by the chancery court, nor does this section provide for a decree against the sureties for damages for wrongful detention of the property sequestered.

In this case the property seized was delivered to the defendant after he had entered into a bond in double the value o'f the property, ‘ ‘ conditioned to have the property forthcoming to abide the decree to be made by the court in the cause.” The bond “was filed in the cause,” and thereby had “the force and effect of a judgment.” The property was not “forthcoming to abide the decree,” and by the terms of the statute “execution may issue thereon against all the obligors for .• . . the value of the proprety.” The statute is mandatory that a “bond in double the value of the property shall always be required, except when its value shall greatly exceed the debt and all probable costs.” The statute is awkwardly phrased, and is somewhat difficult to interpret; but, taking it as a whole, we think it means this: "Where the value of the property seized is greatly in excess of the debt sought to be recovered, it is only necessary for the defendant to enter into a bond for double the amount of the debt claimed. Where the debt is equal to or in excess of the value of the property seized, the penalty of the bond must be double the value of the property seized, so that, in case the property be not forthcoming, the amount of the decree and all probable costs can be recovered from the obligors.

Section 565 does not mention damages for the detention of the property in connection with the amount of the bond, but does provide for “all probable costs.” Dam-, ages for detention does not seem to have been thought of by the legislature when this section of the Code was under consideration, and, there being no provision for a judgment for such damages against the obligors on the forthcoming bond, the court was without power to read into the section the provisions of section 4233.

The cause is reversed, and judgment will be entered here for the value of the property seized, to wit, eight hundred and sixty 'dollars, as of the date of the decree entered by the lower court.

Reversed..