Munding v. Michael

6 Ohio Cir. Dec. 76

• Court: Lucas Circuit Court
• Decided: February 8, 1895
• Status: Published

Opinion

Haynes, J.

This is a case that arose before a justice of the peace, the original action being in replevin, and, in it, certain errors are alleged to have occurred. An action was brought before a certain magistrate in this city, to recover possession of a horse. The suit was brought by Isadore Michael against Ernest Munding and another party, who was an employee of Munding’s, and who was in possession of the horse and was driving it, with another horse, upon some business here in the city. Upon an affidavit being filed before a magistrate, a writ of replevin was issued, which ' was given to a constable, who took possession of the horse, and thereupon he took a bond or undertaking from the plaintiff, written in the following language :

We bind ourselves'to the defendant, Munding (first name unknown), and. John Pruden, in the sum of eighty dollars, that the said plaintiff, Isadore Michael,, shall duly, prosecute this action and pay all costs and damages that may be assessed against them and shall return the property replevined, if the same sball be adjudged to be returned to the defendant.

There had come into force recently before this time, a new statute in regard to the replevin of personal property, and which statute was then and still is in force; and that undertaking was evidently written with the intention of meeting the provisions of that statute. That statute provided*:—

» The constable shall deliver to the plaintiff, his agent or attorney, the property so taken, but not before the time named in the summons for the trial, except in the cases hereinafter provided, when there has been executed by one or more sufficient sureties of the plaintiff a written undertaking to the defendant, in at least double the value of the property taken, to be approved by the justice, to the effect that the plaintiff shall duly prosecute the action, and in case the judgment shall be against .him, that he shall the’n return the property taken or pay the value so-assessed, at the election of the defendant, and also pay the damages assessed for the taking, detention and injury of the property, and costs of suit.

It was under this clause that the plaintiff attempted to give the undertaking and it will be seen that the undertaking, does not recite precisely the language of the statute; nor is it according to the terms of the former statute in regard to bonds in replevin. Upon the hearing of the case, the court found that the defendants in the case were at the commencement of the action entitled to the immediate possession of the horse, and adjudged that the defendant, Isadore Michael, pay one-half the costs of said action, and declares that the judgment and costs have been fully paid. It will be observed that in rendering that judgment it did not declare or adjudge that the horse should be returned to the defendant in replevin, that is, to Munding; nor did it assess any value upon the horse, as, according to the prior statute in force, should have been done. The plaintiff in filing his petition and in bringing his action, afterwards avers that immediately upon the return of this verdict he demanded that the horse be returned to him, and that he has kept up the demand ever since with a great deal of energy, but that Michael, the plaintiff in replevin, has refused to return the horse or pay for him, and thereupon the suit was brought.

Beard & Beard, for Plaintiff. B. F. Reno and A. Farquhason, for Defendant.

Now the judgment, m our opinion, was nevfer rendered as it should have been; that is to say, the proper practice and’the law still remaining in force as is shown in sec. 6616, where the jury find for the defendant and against the plaintiff, they shall then proceed to assess the value of the property, or of the plaintiff’s interest. That law is still in force. What should have been done, in our judgment, is, when this verdict was returned in favor of the defendant in replevin, that the court should have done one of two things: If the defendant in replevin demanded that this horse should be returned, as he had the option to do, then the judgment of the court should have been that the horse should be returned to the defendant in replevin. If he did not elect to take the horse, in that case, the value of the property should have been assessed and judgment should have been entered for the amount assessed, or, perhaps, it should have been assessed in the first instance, and then he should have entered judgment. There was no judgment of that kind rendered, and the condition of the bond is that they “will pay all costs arid damages that may be assessed against them and shall return the property replevined, if the same shall be adjudged to be returned to the defendant.”

No question is better settled in Ohio, we suppose, than this, that the surety on a bond has a right to rely on the letter of the bond. Under the letter of this bond, no judgment was ever entered that the property should be returned, and until that was done, there could be no liability on the part of the sureties. It may be that the bond was not in proper form. If it was not, there remained to the party the, right, as decided by the Supreme Court in 50 O. S., 394, to have the bond amended even as against the sureties, to conform to what was the agreement or indention of all parties. Or if the constable took a bond that was not what the statute required or authorized him to take, he and his bond might be liable to the owner of the property taken. But nowhere can we find any decision of the Supreme Court that allows us, by enlarging the construction, to sustain an action against a surety beyond the strict letter of the bond. We have looked to see if we could not work out a right of action that would entitle the plaintiff here to recover as to the value of this horse, but we are unable to do so, and, for that reason, we hold that the judgment of the court of common pleas should be affirmed. The ground upon which the justice rendered the judgment, as appears upon his record, and the ground upon which the court of common pleas decided the case, as we are informed, we do not think cán be sustained, that is to say, “that no liability accrued until execution was issued upon the judgment.” Now the judgment was that Michael should pay the costs, and those costs he has paid. That is not a matter in controversy. The fact is that the plaintiff has' got this horse and has npt returned it, and the party has not got any judgment that he should return it, nor has he any judgment for the value of the horse. The action of the magistrate fell short of rendering justice as between these parties, or of putting the judgment in such a form as that he could obtain justice. The judgment of the common pleas will therefore have to be affirmed.