Files v. Davis

119 F. 1002, 1903 U.S. App. LEXIS 5443

• Court: U.S. Circuit Court for the District of Eastern Arkansas
• Decided: January 24, 1903
• Status: Published

Opinion

TRIEBER, District Judge

(orally). The question is novel, and one not free from doubt. Neither the learned counsel nor the court has been able to find any opinion directly in point. Had the marshal or a sheriff paid the money to the plaintiff before there was a final judgment against the party who was the real owner of the property, he would have acted at his own peril. Nor would there be any doubt as to the law were this an action against the original plaintiff in the attachment suit, for he, having received the money, would • clearly be liable. But in the case at bar the only defendant is the surety on' the attachment bond. The general rule is well settled, and requires no citation of authorities, that the liability of sureties will be strictly construed in their favor, and not extended by implication or construction. They are favorites of the law, and their contract is strictissimi juris. The question, therefore, to .be determined, is, what liabilities did the sureties on the attachment bond assume when they signed the bond, and bound themselves thereby “to pay to the defendants all damages they, or either of them, may sustain by reason of the attachment if the order therefor is wrongfully obtained.” The bond having been executed in a proceeding pending in a national court, the statutes of the United States, if there are any on the subject, must govern. Section 995, Rev. St. [U. S. Comp. St. 1901, p. 711], provides that all moneys coming into the hands of an officer of a court must be deposited in the registry of the court, and section 996 provides for the manner of withdrawing same. When the sureties signed the bond, what liabilities did they assume? In the .opinion of the court, the liability they assumed was that, in case it is determined that the order for attachment was wrongfully obtained, they would cause their principal to pay, or upon his default they would pay, to the defendants the value of the property seized, with 6 per cent, interest thereon from the time of the seizure, less the net proceeds of the attached property sold, which money would remain in the custody of the court, in its registry, until a final determination of the cause. That the money in the registry would be paid out by an erroneous order of the court, they had no right to, and did not, assume. Nor did they bind themselves to make good damages sustained by the mistake of the court. The plaintiff in that action, who received the money wrongfully, is, no doubt, liable therefor to the plaintiff in this case; but, in my opinion, the sureties are not. Some very strong reasons have been advanced by learned counsel for plaintiff why their client should not be held liable for the mistakes of the court induced by defendant’s principal. But sureties being favorites of the law, and their liabilities strictly construed, the court must resolve all doubts in its mind in their favor. .

The court is of the opinion that the defendant is liable only for the value of the goods taken from him under the order of attachment, with 6 per cent, interest from that date to this, less the sum of $3,247.87 paid by the marshal into the registry of the court, which sum is to be credited as of. the 29th day of April, 1901, the day the original attachment suit was dismissed, for on that date plaintiff would have been entitled to the money in the court.