ARK.] O'BRIEN V. ALFQ111). 957 0-'BRIEN V. 'ALFORD Ppiuion .deliyered September 28 1914. sorrn.=An A s n act , lon in replevin, where the defendant executed a bond "to abide the order and judgment of ihe court" with other stipulations, the bond, although not in the wording of .the _statute, held sufficient in terms to constitute a ,delivery bond wihin the meaning of Kirby's Digest, § § 6863 and 6870. 2. —EPLEVIN=DELIVERy EOND NORDING.77-The statute . does not pre-,scribe any set .form of words for a delivery bond, and oonditions named therein, .not required by the _statute, may, where severa:ble. be treated as surplusage. 3. DELIVERY BOND — SUMMARY JUDGMENT. —A summary judgment may be rendered in the irial couri against sureties on a delivery bond. Appeal from Mississippi Circuit Court, Chickasawba District ; W. J. Driver, Judge; affirmed. STATEMENT BY THE COURT. Appellees sued W. F. DeLong, to replevy a promissory note. The order of replev,in contained a capias clause, under which DeLong was taken into custody. De-Long executed the following bond: "We undertake and are bound to J. E. Roberts, sher-. iff of Mississippi County, Arkansas, and to , J. T. &M. M. Alford, plaintiffs herein, in the sum of eighteen hundred dollars, that the defendant, W. F. DeLong shall abide the order and judgment of the . court in this action, and that he will deliver to the plaintiffs the property sought to be replevied in their complaint or in lieu thereof will pay to them the value of said property as t , he court may,direct, if the .plain s tiff ,prevails in this action, , and that said , defendant, W. F. DeLong, shall render Idnaself amenable to the order of the court and that he will not.depart from saisl court without e X , oneration from ,this bond , and the ,order of the court. (Signed) "W.F. DeLong, -` `. C. .11. Hawkins, " Zeph 0 "
258 O'BRIEN v. ALFORD. [114 This bond was signed by the appellants as sureties for DeLong. Appellees obtained Judgment against De-Long for the amount of the note sued for, " or for the value of said note should defendant fail to deliver same to plaintiff, which value the court finds to be $900, with 8 per cent interest thereon from December 14, 1912, until paid." At a subsequent term of the court, appellees moved the court to render judgment against the appellants as sureties on the bond of DeLong, and the court, after finding that appellees had been unable to collect their judgment against DeLong, proceeded to render judgment against the appellants for $900, with interest at 8 per cent per annum from December 14, 1912, until paid, and for costs. Appellants caused a writ of certiorari to be issued from this court to quash the judgment against them. Appellants, pro se. The judgment is void, (1) because the bond was taken pursuant to section 6859, Kirby's Digest, and is, therefore, a bail bond. The sureties would not be bound unless an execution had been issued against the body of the defendant and returned "not found." Kirby's Digest, § § 315-326; 1 Ark. 152 ; 47 Ark. 388. (2) Because it is not a statutory bond for the retention of property. The conditions are not similar to the one required by section 6863, Kirby's Digest. 78 Ark. 237. Appellees, pro se. The bond in question is a substantial compliance with the statute, and that is all that is required. 40 Ark. 433 ; 10 Ark. 89 ; 14 Ark. 229; 97 Ark. 553; 5 Cyc. 747. Where the statute prescribes what the substance of a bond shall be, without prescribing the form, the fact that the bond contains conditions in excess of those prescribed, will not render it void, but such conditions. where severable, may be rejected as surplusage, and the instrument will be valid, as to those which comply with the statute. 5 Cyc. 748; Id. 756; 76 Ark. 415.
ARK.] 0 'BRIEN v. ALFORD. 259 WOOD, J., (after stating the facts). The only question on this appeal is • whether or not the court erred in finding that the bond set out above is a statutory bond as prescribed by section 6863, of Kirby's Digest, which provides that the defendant "may cause a bond to be executed to the plaintiff in the presence of the sheriff by one or more sufficient sureties in double the value of the property to be affected that the defendant shall perform the judgment of the court in the action." (1) The bond under consideration is sufficient in terms to constitute a delivery bond within the meaning of sections 6863 and 6870, of Kirby's Digest. The appellants contend that the bond under consideration is a bail bond, executed under the authority of sections 6858 and 6859, of Kirby's Digest. These sections provide that when the defendant in replevin has been taken into custody, he may be discharged "upon executing to the officer," having him in custody "a bond in a penalty of at least double the value of the property, * * * conditioned that such defendant shall abide the order and judgment of the court in such action, and that he will cause special bail to be put in if the same be required." The bond under consideration was not executed to the officer, and was not made to protect him in case the defendant made his escape, and was not present to abide the order and judgment of the court, and was in no sense a penal bond as provided under sections 6858 and 6859. It did not contain all the conditions required by the latter of the above sections. But the bond was executed to the plaintiffs (appellees here), and does contain the conditions essential for a delivery bond as prescribed by section 6863, supra. That section prescribed that the bond shall contain a provision "to the effect that the defendant shall perform the judgment of the court in the action." (2) True, the bond under consideration contains more provisions than are necessary in order to fulfill the requirements of a statutory delivery bond, but that does not render the bond invalid. The statute does not pre-
260 O'BRIEN V. ALFORD. [114 scribe any set' for*" of words fei ;. thè -doivëty . bond and the conditihOt reqUired maY be treated as surPlusage where 'they aie -se'verahle; as they dre'iU'the'preSeht caSe, fiohythe c'ohditiohs `whieh the itatate'rVcihires. 5 Cye. p. 748: See', alsti, State" V. &Kith, 40 Ark. 431-43. , In the sense in Which the terhas "fo - abide - the order and judgment of the court" are Used iii the bohd Uhder consideration, they mean the same as the terhas "to per: form the judgment of the . court," as prescribed by section 6863, supra: ThiS Wmild not be the caSe, • f course, butt for the other language used in the bond. In Duncan, Trustee, v. Owens, 47 Ark. 388, We held that these terms; when emploYed ih connectiOn with the capias clause of our statute in replevin constitute a bail bond as specified by sections-6858 and 6859, supra. See, Black's Law Dic-tioriary, p: 7 ; Words & Phrases, vol. 1, p. 16; Andersen's Law Dictionary, p: 6, and cases cited in notes 1 and 2. See, also, lohn • Ericksbn v. F. A. Eider, et al., 34 Minn. 370;C. M. JaCkson v. State of Kthisas, 30 Kan. 88; Hodge.• c6 Wife v. Hodgdon, 8 Cush. (62 Mass.) 294. (3) But; in the bond under. revie*, the other language "he will deliver to the plaintiffs the property sought to be replevied, or in lieu thereof will pay to them the value of said property as the court may direct," shows that the purpose of the obligor and sureties was to execute a-delivery bond, and this, with the other language, is sufficient to meet the requirements of the statute as a delivery bond: This language being used- by the obligor and bY api)011ants, his'sureties, it is Our duty to held that it constitutes a delivery bohd in compliance with the statute. See; Crawford'v. Ozark Ins. Co., 97 Ark: 549. The court, therefore, did nOt err hi rehdering judgment sunimary against appellants Under section' 6870, of Kirby's Digest. The judgment of the circuit court' is affirnaed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.