Morris Motor Co. v. Alford

The opinion of the Court was delivered by

Mr. Justice Watts.

The following statement is taken from the printed record :

“During the month of May, 1922, Morris Motor Company brought an action in claim and delivery against W. V. Wilson, H. J. Alford, and Old Hickory Garage for the possession of one Dodge truck. H. J. Alford as principal, and H. B. Tindal, gave bond in the form provided by Statute to prevent the delivery thereof to plaintiff. Upon trial of the cause judgment was rendered in favor of plaintiff and against W. V. Wilson for possession of truck or its value. A few day subsequent to the rendition of judgment the truck was delivered to the sheriff under execution. and by him sold at public auction, the proceeds credited upon the amount due by W. V. Wilson to plaintiff on note and mortgage. This action is a suit upon the defendant’s bond given in claim and delivery action, and is for the deficiency after the credit of proceeds of sale of truck. Upon first trial of instant case the presiding Judge directed a verdict for plaintiff, subsequently granted a new trial, and, upon second trial, directed a verdict in favor of the defendants.”

The exceptions are nine in number, and we will not consider them separately, as all complain of error on the part of his Honor in directing a verdict for the defendants.

The verdict was for the plaintiff against Wilson for the truck or its value. The truck was seized under execution issued by plaintiff’s attorneys, under the judgment obtained by plaintiff. This execution was delivered by plaintiff’s attorneys to the sheriff. He took possession of the truck and sold it. The respondents under their bond were liable only for the truck or its value up to $500. The verdict for the plaintiff was for the possession of the truck or its value, $250. The plaintiff issued execution, delivered execution to the sheriff, and he took possession of the same and sold it. There was no allegation of damage on account of detention or deterioration.

The respondents only became liable to deliver possession of the truck to the plaintiff or its value. When the truck was delivered to plaintiff or his agent, that released the sureties on the bond. When plaintiff’s attorneys issued execution under the judgment and put the execution in the hands of the sheriff to execute, and he took it under execution, that was a delivery as provided for in the bond, and released the sureties on the bond. We see no error as complained of. Under the whole case, his Honor was correct in directing the verdict he did.

All exceptions are overruled and judgment affirmed.

Messrs. Justices Cothran, BeEase and StabeEr and Mr. Acting Associate Justice Ramage concur. Mr. Chiee Justice Gary did not participate.