Mitchell v. Maxey

123 So. 436, 11 La. App. 317, 1929 La. App. LEXIS 650

• Court: Louisiana Court of Appeal
• Decided: July 1, 1929
• Docket: No. 3522
• Status: Published

Opinions

ODOM, J.

This is an action on a release bond given under the provisions of articles 279 and 280 of the Code of Practice.

Originally, there was a controversy between plaintiff and defendant over the ownership of a motor truck. Plaintiff brought suit asking that he be decreed the owner of it and had it sequestered in the hands of defendant, executing bond under article 276 of the Code of Practice. Whereupon defendant had the seizure released on a forthcoming bond, under article 279 of the Code of Practice, the condition of the bond being as follows:

“Therefore, the condition of the above obligation is such that if the above bound principal shall not send said released property out of the jurisdiction of said Court, and shall not make any improper use of said property, and shall faithfully restore the same to said Sheriff after definitive judgment if so ordered, then and in that event the above obligation is to be null and void; otherwise to remain in full force and virtue, according to law.”

That is in exact accordance with article 280 of the Code of Practice, which reads as follows:

“The security thus given b/ the defendant, when, the property sequestered consists in movables, shall be responsible that he shall not send away the same out of the jurisdiction of the court; that he shall not make an improper use of them; aiid that he will faithfully present them, after definitive judgment, in case he should be decreed to restore the same to the plaintiff.”

On trial of the original suit there was judgment for plaintiff, sustaining the writ of sequestration, recognizing the plaintiff as owner of the truck sequestered, and ordering the said property restored to him by defendant.

Immediately after that judgment became final, defendant produced the property in controversy and delivered it to plaintiff. However, between the date on which the truck was released to defendant on the forthcoming bond and the date on which he returned and delivered it to plaintiff after the judgment became final, the property had become less valuable, due, first, to natural decay, and, second, on account of shrinkage in value or cut in price of all motor vehicles, both old and new.

The present suit is against both the defendant and the surety on the forthcoming bond for the loss which plaintiff alleges he sustained on account of the deterioration and shrinkage in value of the property while in defendant’s possession.

The testimony shows that when defendant executed the forthcoming bond, and had the truck released to him, he at once put it in a dry place where it was protected from sun and rain, and, in order to protect the casing and tubes, jacked the car up and put skids under the axles. The testimony further shows that from the day it was released to him it was never used by him or by any one else, but on the contrary, remained where he placed it until after final judgment, when he took it out, carried it back, and delivered it to plaintiff.

As stated, this suit is on the forthcoming bond. We do no„ think plaintiff can recover. The only obligations which defendant and his surety assumed under the release or forthcoming; bond were that the property would not be sent away out of the jurisdiction of the court, that no improper use would be made of it, and that it would be presented, after definitive judgment, in case defendant should be decreed to restore it to plaintiff. Code of Practice, art. 280.

Admittedly, the property was not sent out of the jurisdiction of the court; it was not used at all, and it was restored to plaintiff by the defendant after definitive judgment in precisely the same condition as when received, natural deterioration excepted.

We do not think the defendant and his surety can be required to do more. They have fulfilled the obligation imposed by the law ana assumed under the bond. We think they should have been released from the bond the moment they reproduced the property.

Counsel for plaintiff contends that defendant and his surety are liable for such loss as plaintiff has sustained .on account of natural deterioration and shrinkage in value. We do not think so. Where the law creates no obligation, courts can impose none. It has been repeatedly and consistently held that, even where there is inserted in a release bond a stipulation that the principal and surety shall pay all such damages as may be sustained, such stipulation is invalid and not binding. There was no such stipulation in this bond, and, even if there had been, it could not have been enforced. We quote the following from the case of Allen vs. Allen et al., 165 La. 437, 442, 115 So. 648, 649:

“* * * The purpose of a writ of sequestration, in a suit for possession of property of which the ownership is in dispute, is that the court, through its executive officer, shall have and retain control over the property until the suit is finally decided, in order that the property may be delivered to him who is adjudged entitled to it. Code of Practice, Art. 269. The only conditions of the forthcoming bond, on which a party to the suit may release and take possession of movable property that has been sequestered, are that he shall not send the property out of the jurisdiction of the court, or make an improper use of it, and that he will faithfully return it after definitive judgment, if ordered to return it to the other party to the suit. Code of Practice, Art. 280. Any other condition inserted in such a bond is invalid. Welsh v. Barrow, 9 Rob. 535; Mulligan v. Vallee, 31 La. Ann. 375. ‘In such cases a sheriff has no power to take any other bond than that which he is authorized by law to take.’ King & Gerson v. Baker, 7 La. Ann. 570.” Albert Pick v. Dickinson, Inc., 154 La. 1068, 98 So. 669.

Counsel cite and rely on our decision in the case of Overland-Texarkana Co. vs. Bickley, 1 La. App. 699. The decree in that case is correct because the testimony showed that, after having the automoDile released on a forthcoming bond, the defendant used it for two years and wore it out. That was an imnroper use of the property. But, insofar as that opinion can be construed as holding that a defendant who gets possession of sequestered property on a release bond is responsible to plaintiff for the decreased value of the property on account of natural decay or shrinkage in value, due to market conditions, it is wrong.

When a defendant in sequestration proceedings gets possession of the sequestered property by giving a forthcoming or release bond, his obligation is to restore the property at the end of the lawsuit. If he does that, his duty has been fulfilled. Of course, if he makes improper use of the property and its value is thereby diminished, he violates his obligation and the condition of the bond, and is liable on that account".

In the Overland-Texarkana Case, supra, it was said:

“The rights of plaintiff and the corresponding duty of defendants must be determined on the basis of things as they existed on the day the car was seized.”

But, this is a suit on a forthcoming bond and not a damage suit. If defendant had failed to produce the property at the end of the suit, he could have, under the release bond, been called upon to respond for the value of the property, at least to the extent of the amount of the bond. But even then we do not think the value of the property when seized should control, if no improper use had been made by defendant.

In the ease of John M. Parker Co. vs. E. Martin & Co. et al., 148 La. 791, 88 So. 68, the court held on rehearing, to quote the syllabus:

“■Where defendant, in sequestration proceeding after release of property by execution of bond, sold the property, its obligation to plaintiff was merely to produce the market value of the sequestered goods at the date it was called upon to produce it after final judgment, and it is not liable for interest on the price received.”

Por the reasons assigned, the judgment appealed from is reversed, and plaintiff’s suit is dismissed at his costs, in both courts.