TULLY HICKSON AND OCALO AUTO AND GARAGE COMPANY, A DOMESTIC CORPORATION, PLAINTIFFS IN ERROR,
v.
GEORGE A. OSTEEN, DEFENDANT IN ERROR
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In a replevin action where a Buick automobile was recovered under a forthcoming bond, the Florida Supreme Court reversed the judgment because the trial court awarded damages against the sureties in excess of the property's assessed value, violating the mandatory statutory requirements for replevin judgments.
The judgment was fatally defective because it awarded $1,000 in damages against the sureties when the property was valued at only $800, violating the mandatory statutory requirement that the judgment be entered in substantial compliance with section 2188 of the General Statutes of 1906.
“the plaintiff shall take judgment for the property itself and against the defendant and the sureties on the forth-coming bond of the defendant for the value of the property; such judgment to be satisfied by the recovery of the property or of the amount adjudged against the defendant and his sureties.”
States the mandatory statutory requirement for replevin judgments when goods are redelivered on a forthcoming bond
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Join FLexlaw to unlock all legal intelligencePlaintiffs in error (defendants below) Tully Hickson and Ocalo Auto and Garage Company had possession of a 1917 Buick automobile that was redelivered …
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Per Curiam.
In an action of replevin the-property was taken by the defendants under a forth-coming bond. The following verdict and judgment were rendered.
“We the jury find that the plaintiff is entitled to the possession of the personal property described in the declaration as one Buick, five passenger, model D-45, 1917 automobile of the value of eight hundred dollars, — together with his damages for its detention which we assess at .two hundred dollars.”
“Upon consideration thereof it is ordered and adjudged that the plaintiff, George A. Osteen, do have and recover of and from the defendants Tully Hickson and Ocalo Auto and Garage Company, a domestic corporation, the personal property described in the declaration as one Buick, five passenger, Model D-45, 1917 automobile, of the value of Eight Hundred dollars, and that a writ of possession do issue for the said property; and that the said plaintiff George A. Osteen do have and recover of-and from the defendant Tully Hickson and E. W. Rush and J. B. Neal, his sureties on his forth-coming bond the sum of One Thousand Dollars as and' for his damages in this behalf, together with his costs taxed at $26.35 for which let execution issue.”
Writ of error was taken by the defendants and the sureties on the forth-coming bond.
The statute provides that: If it shall appear “that the goods have been redelivered to the defendant upon his forth-coming bond, the plaintiff shall take judgment for the property itself and against the defendant and the sureties on the forth-coming bond of the defendant for the value of the property; such judgment to be satisfied by the recovery of the property or of the amount adjudged against the defendant and his sureties.” Par. 2, Sec. 2188, Gen. Stats. 1906, Par. 2, Sec. 3493, Rev. Gen. Stats. 1920.
The language of paragraph 2 of section 2188 of the General Statutes of 1906 relating to the judgment in an action of replevin, where the goods have been re-delivered to the defendant upon his forth-coming bond, is mandatory, and a judgment is fatally defective which is not entered in substantial compliance with its requirements. Johnson v. Clutter Music House, 55 Fla. 385, 46 South. Rep. 1.
As the verdict found the value of the property to be $800.00, it was error to enter a judgment against the sureties for $1000.00.
No material errors appear anterior to the entry of the judgment, it is therefore, ordered, that the 'judgment be reversed and the cause remanded for a proper judgment.
Browne, C. J., and Taylor, Whitfield, Ellis and West, J. J., concur.