Seaboard Air Line Ry. Co. v. Hewlett

78 S.E. 329, 94 S.C. 478, 1913 S.C. LEXIS 167

• Court: Supreme Court of South Carolina
• Decided: May 20, 1913
• Docket: 8552
• Status: Published

Opinions

The opinion- of the Court was delivered by

Mr. Justice Hydricic.

The defendant, Hewlett, brought an action of claim and delivery in the court of a magistrate against -the plaintiff, Seaboard Air Line Railway Company, to recover possession of a car of cotton seed, which the company claimed the right to hold for demurrage charges, amounting to ,$21. Hewlett gave bond,, as required by statute, conditioned, among other things, for the prosecution of said action, and the- seed were taken from the company and delivered to him. Upon the call of the case for trial, it was dismissed, on motion of the railway company, on the ground that the magistrate had no jurisdiction, — the particular ground -being that the day of trial was, fixed in the summons twenty-one days after the day of service instead of on a day within twenty days thereafter, as required by the statute.

1 The railway company then brought -this action on the bond. The Circuit Court held that no breach of the condition of the bond had been proved, and directed a verdict for the defendants.

While, in some respects, the case of Elder v. Greene, 34 S. C. 154, is like the- present case, there is at least one important difference. It appears, from the report of that case, that the condition of the bond, there sued on was “for the return to the defendants of the said property, or so- much thereof as shall be taken by virtue of the said affidavit and requisition thereupon endorsed, if a return thereof shall be adjudged.” It will be observed that the bond in that case was not conditioned for the prosecution of the action. Therefore, the Court held that, as the condition of the bond was “for the return to- the defendants of the said property * * * if a return thereof shall be adjudged,” and as the trial justice- had no- jurisdiction to order the return- of the property, his order to that effect was a nullity, and no- return thereof having been legally adjudged, there had been no breach of the condition of the bond. Nevertheless, in order that the parties might not be denied the opportunity of trying their right and title to the property in dispute, and that injustice might not be done, the Court remanded the case with leave to the plaintiffs to apply for an amendment of their complaint so as to make the action one for trespass for the illegal seizure of the property rather than an action on the bond, which it was held to' be.

2 In this case, however, one of the conditions of the bond was “for the prosecution of the action.” So that the question here is whether the dismissal of the action of claim and delivery for lack of jurisdiction, even though it was done on motion of the defendant in that action (plaintiff here), was a breach of the condition of the bond. That question has been conclusively answered in the affirmative by this Court in Alderman v. Roesel, 52 S. C. 162, where an order of discontinuance of an action of claim and delivery was taken by the plaintiff, who had given bond to prosecute the action. The Court said: “Is such discontinuance of an action a breach of the condition of the bond to prosecute? To prosecute an action, so' far as concerns the matter in hand', is to carry it on to final effect, and so the bond in question is conditioned to carry on the action to' effect. Where a plaintiff abandons his action, fails to- prosecute it, discontinues it on his motion, or where it is dismissed for'want of prosecution, there is a breach of the condition to prosecute.” In 34 Cyc. 1578, it is said: “A dismissal of such a suit is held to' constitute a breach of the bond, entitling the obligee to an action for the return of the property or its value, although such dismissal was ordered on his own motion for defect in the zvrit, for want of jurisdiction, or for failure of plaintiff to prosecute.” (Italics added.) To the same effect is 24 A. & E. Enc. L. (2d) 539.

From the foregoing statement of the law, which is well supported by the authorities, it appears that it makes no difference that the action of claim and delivery was dismissed on motion of the defendant, and there is no- reason why that fact should prejudice the defendant’s right of action on the bond. If the plaintiff in claim and delivery should fail to prove his right to the possession of the property, and, for that reason, be nonsuited, on motion of defendant, should defendant, on that account, be denied the protection of the bond which the statute required the plaintiff to give as a prerequisite of being allowed to take the property for his possession? The bond is required upon the supposition that the plaintiff might have no case, or, having one, might fail to prove it. Or, suppose the plaintiff brings his action in a Court which has no- jurisdiction, gives bond and takes possession o-f defendant’s property, must defendant submit to the trial of the case- in a Court who-se judgment would be a nullity and could not be pleaded in bar o-f another action at the peril o-f being told, if he moves to- dismiss the action- for want o-f jurisdiction, that because he has- done so he has no-right of action on the bond ? Such a holding would enable a plaintiff to- take advantage of his own wrong, and get possession of a defendant’s property without giving him that protection which the law requires.

3 It is said, however, that the breach of the condition to prosecute the action should not be allowed to avail appellant, because no such breach was alleged, o-r proved, or relied upon in the Court below. It is true that the failure to prosecute the action was not stressed, either in the allegations of the complaint, in- evidence, or in the contentions of the plaintiff in the Circuit Court. The gravamen of plaintiff’s complaint seems to have been the failure of defendant to return the property in accordance with an alleged judgment for the return thereof. Upo-n this ground, the- plaintiff utterly failed to make out a' case, because the uncontradicted evidence was that there was no judgment for the return o-f the property. Indeed, there could not have been any such judgment, because the magis trate held that he had no- jurisdiction, and there was no appeal from his ruling. Elder v. Greene, supra.

The allegations of the complaint, however, were quite sufficient to entitle plaintiff to- rely upon the failure to prosecute the action as a breach of the bond. The complaint alleges the institution of the action of claim and delivery in the magistrate's court, the giving of the bond in accordance with the provision of the statute (and a copy of the bond is attached to the complaint, as an exhibit, and made a part of the complaint, and in it there appears the condition to prosecute the action), the taking of the property from defendant and the delivery thereof to plaintiff, in consideration of the giving of the bond, and the dismissal of the action. To hold that these allegations are not sufficient to entitle plaintiff to rely upon the failure to prosecute the action as a breach of the bond would commit this Court to' a strict and technical construction of a pleading, contrary to the spirit and mandate of the Code of Procedure as well as the previous decisions of the Court.

It must not be forgotten also that the defendants herein, and not the plaintiff, selected the battle ground in the Circuit Court, for the defendants moved for the direction of the verdict on the ground that plaintiff had failed to prove a judgment for the return of the property, and it was upon that ground that the motion was granted. It is true that plaintiff did not take the position on Circuit that the verdict could not be directed, because there was allegation and proof of a breach of the condition to prosecute, but merely resisted the motion of defendants on the ground upon which it was made. But this cannot avail respondent, because the error here complained of was one of commission and not one of mere omission; and the rule that errors of omission will not ordinarily be allowed to avail a party in this Court, unless the matter complained of was relied upon or brought to the attention of the Judge in the Circuit Court does not apply. This is more like the case of a demurrer to a complaint for insufficiency on a particular ground, which may be well taken as to that ground, yet if the complaint states any cause of action, this Court has frequently held that it is error to dismiss it for insufficiency, though it may not state facts sufficient to constitute the particular cause of action which the complaint shows that the plaintiff intended to- set up. So, it has been held that when the facts alleged and proved show that plaintiff is entitled to any relief, it is error to grant a nonsuit or direct a verdict for defendant. In such cases, it is the duty of the Court to grant the relief which, under the allegations and proof, the plaintiff is. entitled to according to- law.

It appears from the record that the plaintiff contended on Circuit that it was entitled to- recover the penalty of the bond. In an action like this the plaintiff would be entitled to recover only such damages as it sustained by reason of the taking of the property from its possession; for instance-, in this case, plaintiff is entitled to- recover only such an amount, if any, as may be found to- be due to it by the defendant, Hewlett, for demurrage charges on the car load of seed in question for the collection of which it was holding the seed. Alderman v. Roesel, supra; 24 A. & E. Enc. L. (2 Ed.) 540.

Reversed.

Messrs. Justices Woods and Watts concur.