Slaughter v. Webster

SAYRE, J. —

Appellee brought his statutory action of detinue against J. W. and R. D. Aikin for one bay mare mule and other personal property designated and described in the complaint. Arthur Aikin claimed the mule, made affidavit and bond as prescribed by the statute, and received possession of the animal from the sheriff. Judgment by default Avent against the claimant. After reciting claimant’s default, the court considered and adjudged that plaintiff have and recover of the claimant “the damages in this behalf expended,” and ordered a jury. The jury by their verdict found for the plaintiff and against the claimant for the property sued for, and assessed plaintiff’s “damages” at $100, Avhereupon the court ordered and adjudged that the plaintiff have and recover of the claimant and the sureties on his claim bond the sum of $100, with costs. On a later day the sheriff returned the claim bond forfeited. The sureties have taken this appeal.

(1-3) It is to be observed that the claimant, who was not an original party to the cause, was not brought in by an affidavit of defendant pursuant to section 6051 of the Code, so as to become a substitutionary party in place of the original defendant. — Southern Hardware & Supply Co. v. Lester, 166 Ala. 86 , 52 South. 328 . He asserted his claim under section 3792, thus putting on foot a new and separate proceeding. See Shreve-Milligan Live Stock Co. v. Pelham, 6 Ala. App. 262 , 60 South. 516 . It is not necessary that we inquire what in such case becomes of the action as between the original parties, or what course of proceeding must be observed, or what' judgment may be rendered as between them.— *644 Keyser v. Maas, 111 Ala. 390 , 21 South. 346 . Section 3792 provides that, when affidavit and bond is executed, “the property must be delivered to the claimant, and the affidavit and bond returned by the officer having in charge the property claimed with the summons, and thereupon the same proceedings must be had as in other trials of the right of property.” But sufficient reasons why some of the -provisions applicable to trials of the right of property in cases of levy under attachment or execution may not apply in cases of claims interposed in detinue for specific property may be found stated in the opinion of Walker, P. J., in Shreve-Milligan Live Stock Co. v. Pelham, supra. And it seems to result from the nature of the issue to be litigated where a claim is interposed in detinue under section 3792 that the dependent and collateral cause stands for trial between plaintiff and claimant as though they were original parties, plaintiff and defendant respectively, to a statutory action of detinue — an action involving, not the right to subject property to the satisfaction of a debt as in case of a levy of attachment or execution, but only the legal title and the right of possession of specific property — and that upon the trial the verdict, if for the plaintiff, must assess the value of each article separately, and also assess damages for its detention, and judgment in such, case must be for the property sued for, or its alternate value, with damages for its detention to the time of trial, as provided by section 3781, and then, if the claimant fails for 30 days to deliver the property, and to pay the damages assessed for the detention thereof, and the costs, the sheriff must upon the bond make return of the fact of such failure, and thereupon the bond has the force and effect of a judgment, on which execution may issue against any or all the obligors therein for the alternate value of the property as as *645 sessed by the jury, the damages assessed for its detention and the costs, such being the effect of section 6051 and 3783 of the Code. The further provision of said section is that, if the property be delivered, but the damages and costs be not paid, return of this fact must be made, whereupon execution issues for such damages or costs as may be unpaid. It is plain upon the record in this case that there was no assessment of the alternate value of the mule, nor was any judgment rendered under which claimant or his sureties might discharge the bond to the extent of the value of the mule by a delivery of the animal as contemplated by the several statutory provisions bearing upon-the subject. The"sureties in the claim bond become liable only when the claimant fails tq deliver the property to the sheriff, and it is error to render judgment against the claimant and his sureties for the “damages” assessed and the costs of the suit. — Seisel v. Folmar, 103 Ala. 491 , 15 South. 850 ; Lightman v. Epstein, 164 Ala. 660 , 51 South. 164 . Nor have we, nor had the court below’-, in the absence of a verdict assessing the alternate value of the mule, data upon which to. correct the judgment.

The verdict and judgment are alike defective, and the defect must operate to reverse the judgment. — Jones v. Anderson, 82 Ala. 302 , 2 South. 911 .

Reversed and remanded.

Anderson, C. J., and McClellan and Thomas, JJ., concur.