Opinion
7 Div. 961.
May 9, 1933.
Appeal from De Kalb County Court; L. L. Crawford, Judge.
Action for breach of official bond by J. M. Tucker against L. J. Campbell and the National Surety Company. From a judgment for plaintiff, defendants appeal.
Reversed and rendered.
Count B of the complaint alleges that on October 6, 1930, a writ of attachment was issued out of De Kalb county court and delivered to defendant Campbell "and was by him levied upon certain property a description of which is set out in said return upon said writ, and also in the forthcoming bond taken by him which is here set out"; that "said property was redelivered to the defendant in the writ upon his making an alleged forthcoming bond" reproduced in the count. The bond recites that: "We, W. A. Buchanan and sureties, are held and firmly bound unto __________ in the sum," etc. It is further recited that a writ of attachment issued from the De Kalb county court in favor of Tucker and against Buchanan had been placed in the hands of Campbell as sheriff, who levied upon the property thus described: "* * * all the crops grown upon the J. M. Tucker place located in Beat 24 De Kalb County and known as the Old Tucker Place where the defendant resides, consisting of the following: About 12 a of cotton in field and 12 a corn in field. 3 thousand bu. of fodder in barn loft. 1 1/2 ton of cotton seed. About 20 a cotton in field and 9 a of corn in field grown by Mr. Neely on place. 1 BBL cotton * * * one BBL cotton seed which property has been delivered to said defendant upon his entering into this bond." The condition of the bond is that Buchanan shall deliver the property levied upon "to the proper officer by 12 o'clock noon of the 12 day of __________, 19__."
It is further alleged that plaintiff thereafter, on June 16, 1931, recovered of the defendant in the writ a judgment in the sum of $400, and the further sum of $241.85, costs of suit; that said judgment both as to judgment and cost is still outstanding and has not been paid either in whole or in part; that said property was never delivered to the sheriff or any other lawful officer of De Kalb county. It is averred that plaintiff "has incurred liability for large sums of money as attorney fees and court costs in an unsuccessful bona fide attempt to recover upon said bond, which he claims as special damages, none of which has been paid," and that "the said L. J. Campbell has breached his official bond in the taking of the bond therein set out to his damage as aforesaid."
Plea 2 asserts that plaintiff cannot recover in this suit for that the gravamen of the suit is the failure of the sheriff to take a proper bond in an attachment suit by Tucker against Buchanan; that on September 19, 1931, plaintiff, having the legal right to bring suit either against the sheriff and his sureties or to treat the bond taken as a common-law obligation and sue thereon, elected to treat said bond as a common-law bond and brought suit thereon against Buchanan and his sureties; that plaintiff failed to prosecute said suit and on January 30, 1932, took a nonsuit in said cause.
Baker Baker and J. V. Curtis, all of Fort Payne, and Ball Ball, of Montgomery, for appellants.
If the sheriff had failed to take any bond or failed to take a statutory bond, he and his surety would be liable for damages resulting to plaintiff. Harbin v. O'Rear, 219 Ala. 173, 121 So. 547; Traweek v. Heard, 97 Ala. 715, 12 So. 166. The measure of damages cannot exceed the value of the property seized and wrongfully surrendered. If such value exceeds the amount of the judgment, then the recovery could be no greater than the judgment and costs. Gaut v. Beatty, 200 Ala. 654, 77 So. 28; Cobb v. Thompson, 87 Ala. 381, 6 So. 373; Adler v. Potter, 57 Ala. 571. Ordinarily a bond which does not contain the name of the obligee is a nullity, but, if there is enough in the bond to show who was intended as the obligee, it might not be void. 9 C. J. 12. The terms of the bond show Tucker was intended as the obligee, and, as to the time for return of the property, the statute clearly fixes that time. Having elected to treat the bond as a common-law bond, and having brought suit thereon, and having exercised the right of election of remedies, he cannot now maintain this suit. Count B does not sufficiently describe the property nor allege the value thereof. Defendants should not be held liable for costs and attorney's fees in the suit by Tucker against Buchanan, to which suit they were not parties. The instruction by the court to the jury to find for plaintiff a sum equal to the judgment in the original attachment suit and costs and costs in the suit on the bond in addition to attorney's fees was error. Code 1923, §§ 6203, 6204; 6 C. J. 332; 9 C. J. 12, 27, 29; Meredith v. Richardson, 10 Ala. 828; Whitsett v. Womack, 8 Ala. 466; Braswell v. Watkins, 216 Ala. 62, 112 So. 343; Bradford v. Lawrence, 18 Ala. App. 138, 90 So. 809; Williams v. Ragan, 153 Ala. 397, 45 So. 185.
Chas. J. Scott, of Fort Payne, and Thos. E. Orr, of Albertville, for appellee.
The bond was not in statutory form, and the sheriff was liable for taking same and releasing the property. Livings v. Barnes, 24 Ala. App. 367, 137 So. 44; Id., 223 Ala. 443, 137 So. 45; Harbin v. O'Rear, 219 Ala. 173, 121 So. 547; Traweek v. Heard, 97 Ala. 715, 12 So. 166. Attorney's fee in the suit on the bond is a proper element of damages. Pruet v. Williams, 156 Ala. 346, 47 So. 318; Burns v. George, 119 Ala. 504, 24 So. 718; Id., 154 Ala. 626, 45 So. 421; 57 C. J. 932; Love v. People, 94 Ill. App. 237. Where a party has two remedies, either of which he may pursue, he may pursue either or both, provided he is not estopped by inconsistent pleading, until he obtains satisfaction in one or the other. 20 C. J. 9, 18, 26; Cinamon v. St. L. R. Co., 229 Mass. 33, 118 N.E. 327; Ex parte Adams, 216 Ala. 241, 113 So. 235; Knowles v. Dark, 211 Ala. 59, 99 So. 312. Plaintiff was in no way estopped to proceed with the instant suit. Todd v. Mortg. Co., 196 Ala. 169, 71 So. 661; Register v. Carmichael, 169 Ala. 588, 53 So. 799, 34 L.R.A. (N.S.) 309; 20 C. J. 32. The statute provides that the replevy bond be in double the value of the property. The bond being for $1,300, the value of the property is half that amount. In fixing the amount of the bond, the sheriff ascertained the value of the property, and such ascertainment is judicial in nature. Code 1923, § 6203; Scott v. Ryan, 115 Ala. 587, 22 So. 284; French v. Stanley, 21 Me. 512; 57 C. J. 973; 6 C. J. 266, 357.
The cause is presented by count B, demurrers thereto, pleas 1 and 2, and demurrer to plea 2.
The appellee was plaintiff in an attachment suit in the court below, against A. W. Buchanan. An attachment writ against the estate of Buchanan was issued and placed in the hands of defendant Campbell, who was the sheriff of De Kalb county, and by the said Campbell or his deputies this writ was levied on certain property described in the sheriff's return. The said Buchanan executed a certain paper supposedly intended as a forthcoming bond, which said paper was approved by defendant Campbell and the property levied on was released to the said Buchanan. The paper taken by the sheriff, and upon which the attached property was released, named no obligee and fixed no definite time for a return of the property as provided by section 6203 of the Code of 1923. The obligation taken by the sheriff for the return of the property levied on was not such a statutory bond as would authorize plaintiff in the attachment suit to forfeiture and execution against the principal and sureties as is provided by section 6204, Code 1923. Gaut v. Beatty, 200 Ala. 654, 77 So. 28.
There having been a failure on the part of the sheriff to take the required statutory bond, after he had seized the property of defendant in the attachment suit and he had redelivered the same to defendant in attachment, this was a breach of the terms of his official bond, subjecting him and his surety to liability for the resulting damages. Harbin v. O'Rear, 219 Ala. 173, 121 So. 547.
The measure of recovery, in an action on a sheriff's bond for a redelivery of property levied on in attachment without having taken the required statutory forthcoming bond, would in no case exceed the value of the property levied on and released at the time of the levy. 57 Corpus Juris, 855 [353] 12; Code 1923, § 6204; Adler v. Potter, 57 Ala. 571.
If the amount to be recovered by plaintiff is less in amount than the value of the property levied on, the recovery would be the debt and costs.
As a general rule, a sheriff, who releases or negligently loses control of property levied on so that it is not available for the satisfaction of a judgment of condemnation in an attachment suit, is liable to the attachment plaintiff for the amount of the debt and costs, unless the property seized was not sufficient to satisfy the debt, in which case the measure of damages is the value of the property at the time when the levy was made. 57 Corpus Juris, 855 (353) 12.
The so-called forthcoming bond, taken and approved by the sheriff, fixed the amount of obligation at $1,300, which under the statute authorizing the taking of a forthcoming bond is twice the value of the property levied. This defective forthcoming bond is in evidence, and in the absence of proof to the contrary is sufficient upon which to fix a valuation in excess of the amount of the debt and costs and cast upon the defendant the burden of showing the property was of less value. Willard v. Whitney, 49 Me. 235.
There was recovered in the court below, under affirmative instructions from the trial court, a judgment for $709.20, which amount included $17.40 court costs and $50 attorney's fees in a suit in the circuit court, wherein plaintiff brought suit on the so-called forthcoming bond claiming the same to be a valid common-law bond. In this suit the plaintiff failed of recovery. Without passing on the merits of that case, we hold that the bringing of that suit was voluntary on the part of plaintiff and these defendants are not liable for the expenses of that suit in this action. Nor was the bringing of that suit an election on the part of plaintiff such as to bar a recovery here.
The so-called forthcoming bond was not a nullity. Taking the whole instrument in connection with the surrounding circumstances, there can be no doubt as to the identity of the obligee in the bond, and while the omission to name the obligee renders the bond ineffective as a statutory bond so as to protect defendants in this suit, the obligation still rests on the principal and sureties in said bond, for the benefit of the plaintiff in the attachment suit. State v. Wood, 51 Ark. 205, 10 S.W. 624; Preston v. Hull, 23 Grat. (Va.) 600, 14 Am. Rep. 153, 12 Am. Law Reg. (N.S.) 699, and note; Fellows v. Gilman, 4 Wend. (N.Y.) 419; Pendleton et al. v. Bank of Ky., 1 T. B. Mon. (Ky.) 171; Leach v. Flemming, 85 N.C. 447. The rule based upon the above cases and others cited is stated in 9 C. J. 12 (13).
The plaintiff in the attachment case had two remedies open to him which were concurrent, and therefore the pursuit of the one did not bar a recovery in the other. Todd v. Interstate Mtg. Bond Co., 196 Ala. 169, 71 So. 661. For this reason the demurrer to plea 2 was properly sustained.
Count B, while defective as to that part of the count seeking a recovery for "other large sums of money as attorneys fees and court costs in an unsuccessful bona fide attempt to recover on said bond," otherwise states a good cause of action, and the grounds attacking the description of the property and a failure to allege a value of the property seized were not well taken.
There are many other questions raised by the record, but as we view this case it becomes unnecessary for us to discuss them.
Regardless of the technical errors appearing (and there are several which would justify a reversal of the case), it appears without conflict that the plaintiff is entitled to recover; that the amount of that recovery should be the judgment in the attachment suit plus the costs in that case; that plaintiff is not entitled to a recovery in the suit in the circuit court in which plaintiff undertook to fix a common-law liability on the bond taken by the sheriff; that the evidence on another trial would not be changed, it appearing from the record what judgment the trial court should have rendered, it becomes the duty of this court to do so.
The judgment of the trial court is reversed, and a judgment is here rendered in favor of appellee (plaintiff) for $400 with interest from June 16, 1931, and $241.85 costs, all of which was recovered in the attachment suit of Tucker v. Buchanan, but with no penalty or costs in this court.
Reversed and rendered.