Opinion
6 Div. 877.
April 12, 1923.
Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.
Goodwyn Ross, of Bessemer, for appellant.
Where the words of a bond are not sufficiently explicit, it must be construed in reference to the intention of the parties. Whitsett v. Womack, 8 Ala. 466; Meredith v. Richardson, 10 Ala. 828; Loeb v. City of Montgomery, 7 Ala. App. 325, 61 So. 642; Ala. Power Co. v. Hamilton, 201 Ala. 62, 77 So. 356; Sheffield Co. v. Harris, 183 Ala. 357, 61 So. 88; Adler v. Potter, 57 Ala. 571; Ward v. Hood, 124 Ala. 570, 27 So. 245, 82 Am. St. Rep. 205.
Pinkney Scott, of Bessemer, for appellee.
The bond executed by defendant was not binding. Code 1907, § 37834; West v. Hayes, 120 Ala. 97, 23 So. 727, 74 Am. St. Rep. 24; Harrison v. Hamner, 99 Ala. 605, 12 So. 917; Traweek v. Heard, 97 Ala. 716, 12 So. 166.
The only question presented upon this appeal relates to the sufficiency of the replevy bond executed by the appellees as a statutory bond, justifying the issuance of execution thereon against the obligors.
This court has had occasion, in the very recent case of Ex parte L. C. White, 95 So. 495, to review this question, citing some of the authorities pertinent thereto. In that case it was said:
Ante, p. 95.
"Such a statutory bond, properly returned forfeited as provided by statute, has, by virtue of section 3783 of the Code, 'the force and effect of a judgment,' and this fact doubtless had influence in the former decision of this Court, holding that such bonds should 'follow strictly the substance * * * of the statute.' "
In that opinion was cited the cases of Traweek v. Heard, 97 Ala. 715, 12 So. 166; Harrison v. Hamner, 99 Ala. 603, 12 So. 917.
So much of the replevy bond here in question as is material to the decision of this cause will appear in the report of the case, and the language of its condition need not be here repeated. Suffice it to say that it requires no argument to demonstrate upon reading the bond that it falls far short of the rule, as disclosed by our decisions, that, as a statutory bond, it should follow strictly the substance of the statute. We consider the decision of Ex parte L. C. White, supra, and authorities therein cited as decisive of this appeal adversely to the appellant.
We have carefully considered the several authorities cited in brief of counsel for appellant, and find that none of them deal with the question of the sufficiency of the bond as a statutory bond, and are therefore without influence upon this appeal, as that is the only question to be considered.
Let the judgment of the court below be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.