
    The Conrad Baisch Kroehle Co. v. Hoff.
    (Decided October 21, 1930.)
    
      
      Messrs. Stevens S Stevens and Mr. Cyril J. Maple, for plaintiff in error.
    
      Mr. Wesley L. Grills, for defendant in error.
   Funk, P. J.

The parties, being in this court in the same relation as they were in the court below, will be referred to as plaintiff and defendant.

Plaintiff, the Conrad Baisch Kroehle Company, filed its petition in the common pleas court against the defendant, H. B. Hoff, the material allegations of which are substantially as follows: That on August 11, 1926, plaintiff commenced an action against one Harry J. Lee before a justice of the peace in and for Elyria township in Lorain county to recover $163 and interest from July 8, 1926, upon an account for furniture sold and delivered by plaintiff to said Lee; that an attachment was duly issued out of said court on August 14,1926, and levied upon an automobile of said Lee; that on September 6, 1926, said Lee executed and filed his bond with this defendant, H. B. Hoff, as surety, to discharge said automobile from the attachment, which bond was duly approved by the justice and a copy attached to the petition, which, omitting the formal parts, reads:

“We bind ourselves to the plaintiff, Conrad Baisch Kroehle Co., in the sum of Four Hundred Dollars, that the defendant, Harry J. Lee, shall perform the judgment of the said magistrate in this action.”

Continuing, the petition recites that, upon the execution and delivery of the bond, said automobile was so discharged and returned to said Lee; that said case was tried before said justice on September 16, 1926, and judgment entered by the justice for the defendant; that plaintiff thereupon gave notice of appeal and filed its appeal bond, approved by said justice, conditioned that plaintiff would prosecute its appeal to effect without unnecessary delay, and that, if the judgment should be against plaintiff on appeal, it would satisfy such judgment with interest and costs and pay said Lee all damages sustained, if it were found in the common pleas court on appeal that the attachment was wrongfully obtained; that said appeal was duly perfected and the case tried in the common pleas court in January, 1930, at which time judgment was entered for plaintiff and against said Harry J. Lee for $197.23; that on March 21, 1930, execution was duly issued to the sheriff of Lorain county, and on the same day returned indorsed “No goods or property of defendant found on which to levy;” and that said judgment and costs have not been paid, and there is due the plaintiff thereon the sum of $241.58, with interest from January 21, 1930, for which it asks judgment.

To this petition the defendant, H. B. Hoff, filed a general demurrer, on the ground that the petition does not state facts sufficient to constitute a cause of action, which demurrer was sustained by the common pleas court, and the case is now here on petition in error to reverse that judgment.

It will be observed that the bond upon which this action is founded was given by Hoff under Section 10287, General Code, and was for the discharge of the automobile from the attachment, and was given in double the amount of plaintiff’s claim as stated in its affidavit, and was not given under Section 10258, General Code, which provides that the bond must be given in double the appraised value of the property, conditioned “that the property or its appraised value in money will be forthcoming to answer the judgment of the court.”

A bond given under said Section 10287 may be referred to and designated as a “discharge” bond, while a bond given under Section 10258 may be referred to as a “redelivery” or “forthcoming” bond.

There is no claim made that plaintiff did not properly perfect its appeal, or that the appeal bond does not comply with Section 10383, General Code, on appeals generally, and also with Section 10280, General Code, which provides that the bond shall contain a provision to pay the defendant all damages sustained if it be found in the common pleas court that the attachment was wrongfully obtained. Neither is there any claim that the word “magistrate” used in the bond is not synonymous with the word “justice” used in the statute; but it is rather assumed in the briefs and the arguments that they are synonymous.

Counsel for defendant calls attention to the fact that Section 10258, General Code, provides that the bond must be conditioned “that the property or its appraised value in money will be forthcoming to answer the judgment of the court in the action,” and to the fact that Section 11827, General Code, which is the corresponding section applicable to the common pleas court for forthcoming bonds, also reads the same way, and that Section 11844, General Code, which provides for a discharge bond in the common pleas court, requires the bond to be conditioned “that the defendant will perform the judgment of the court,” while Section 10287, under consideration in the instant case, provides that the bond be conditioned “to the effect that the defendant will perform the judgment of the justice."

Counsel thus contends that, since Sections 10258, 11827 and 11844 all use the word “court,” while Section 10287 uses the word “justice,” said Section 10287 should be construed strictly and limited to the exact letter of the bond, and that it literally means the judgment of the justice of the peace alone, and has no reference or application to the judgment of a higher court in which the case is finally determined, and that this rule is especially applicable in the instant case, since the surety is an individual or gratuitous surety, as distinguished from a paid surety. It is therefore claimed that, when the justice rendered judgment for defendant, the bond became of no effect and had no application to the performance of the judgment of the common pleas court, even though the case was properly appealed to that court and judgment there rendered in favor of the plaintiff. This is the sole question at issue in this court.

If we follow the reasoning of counsel for defendant in the instant case to its logical conclusion and apply it to a case where the justice had rendered judgment for the plaintiff, and defendant had appealed, and the common pleas court had rendered judgment for the defendant, the discharge bond would have to be paid because the justice rendered judgment for plaintiff, even though the common pleas court rendered judgment for the defendant. We hardly believe that it would be contended by counsel for defendant that defendant and his bondsmen would be required to pay the discharge bond if judgment had been rendered by the justice for plaintiff, and, on appeal, had been rendered by the common pleas court for the defendant.

It will be further noted that, by virtue of said Section 10287, a defendant has the absolute right to give a bond and have the property discharged from the attachment and returned to defendant without an order of the justice, whether or not the attachment was rightfully issued — the only requirement being that the bond must be approved by the justice.

Although the section reads that, upon the giving of the bond to the approval of the justice, “the attachment in such action must be discharged, and restitution made of any property taken under it,” yet, construing the section as a whole, and in rela-. tion to other sections on attachment, it is obvious that such bond is given only for the purpose of securing a release of the attached property, not for the discharge of the attachment itself, as our Supreme Court has held that a discharge bond such as this is takes the place of the property, that the property may be disposed of by the plaintiff or levied upon by other creditors, and that the giving of such bond discharging the property from the attachment does not prevent the defendant from proceeding under Sections 10258 and 10259 to have the attachment itself discharged. Myers v. Smith, 29 Ohio St., 120; Jayne’s Exrx. v. Platt, 47 Ohio St., 262, 24 N. E., 262, 21 Am. St. Rep., 810; William Edwards Co. v. Goldstein, 80 Ohio St., 303, 88 N. E., 877.

Moreover, Section 10279 provides that, if a judgment is rendered in favor of the defendant before the justice, the attachment shall be discharged unless within ten days the plaintiff gives a bond for appeal to the court of common pleas, and that in such event the property.shall not be discharged and returned to the defendant, but the attachment shall be continued and determined by the court of common pleas as though it had been issued from that court. Under this section, if the discharge bond had not been given, the property would have remained in the hands of the officer until the case was disposed of in the common pleas court.

Since Section 10279 provides that on appeal the attachment shall continue, and the property remain in the possession of the officers, and since Section 10287 provides that, when the bond is given, the attachment must be discharged and the property returned to defendant, and since our state courts hold that the bond clearly takes the place of the property, can it be said that Section 10287 should be so strictly and literally construed as to limit it only to the judgment of the justice and not give it the broader construction to mean the judgment of the court in which the case is finally disposed of, when the case has been properly appealed and a higher court renders a judgment in favor of the plaintiff?

We think not, as it will be noted that property released by the constable under a forthcoming bond under Section 10259 is constructively in his possession during the pendency of the action, and that the bond is for the return of the property or the payment in money of the appraised value if it is not returned, while property released under a discharge bond under Section 10287 is discharged entirely and the bond is substituted for the property and becomes the security of the creditor instead of the property, and is given in double the amount of plaintiff’s claim instead of double the amount of the appraised value of the property. 4 Ohio Jurisprudence, “Attachment,” page 158, Section 125; 6 Corpus Juris, “Attachment,” Section 679, page 327; Perry v. Post, 45 Conn., 354.

It would surely be an injustice to an attaching plaintiff to hold that Section 10287 should be so literally construed as to refer only to the judgment of the justice court, when the statute provides for an appeal, and that, when an appeal is perfected, the property shall be held by the attaching officer until the case is finally determined in a higher court, and further provides that a bond may be given whereby the attachment “must be discharged, and restitution made of any property taken under it;” and this is especially so in view of the holdings of our Supreme Court that the bond takes the place of the property and that upon the giving of such a bond the property may be disposed of by defendant or taken in execution by other creditors, and that the giving of such bond does not prevent the defendant from proceeding to have the attachment itself discharged.

Moreover, such holding would enable the defendant to defeat recovery entirely when the justice gives judgment for defendant, even though the higher court gives judgment for plaintiff, which is the situation in the instant case, as defendant now has no property on which execution can be levied.

Furthermore, the rule seems to be well recognized that, when an attaching plaintiff properly perfects Ms appeal within the statutory time, a judgment for the defendant does not divest the attachment, and that such appeal has the effect of preventing the dissolution of the attachment which would otherwise be caused by a judgment of the justice for the defendant. King v. Watson, 51 Colo., 293, 117 P., 165, Ann. Cas., 1913B, 178.

The rule is also well settled in this state that, when either party perfects an appeal, the judgment of the justice of the peace is thereby vacated, and there is then in reality no judgment of the justice; and it is equally well settled that, when a case is properly appealed from the justice of the peace to the common pleas court, the judgment of the common pleas court may thereby be said to be the judgment of the justice, as it becomes the judgment that the justice should have rendered, and, the bond being given to perform, the judgment of the justice should certainly include the judgment which the justice should have rendered as determined by the common pleas court, or the reviewing court in which the case is finally determined.

As to the sufficiency of the petition generally, see Winton v. Myers, 8 Okl., 421, 58 P., 634.

We are therefore unanimously of the opimon that Section 10287, General Code, should be construed to have application to the final determination of the case in the common pleas court, that it was never intended that it should have application only to the judgment of the justice of the peace, that the word “justice,” as used in the section, should be given the same construction as that given to the word ‘ ‘ court, ’ ’ as used in related sections, and, consequently, that the petition does state a cause of action.

The judgment will therefore be reversed and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Pardee and Washburn, JJ., concur.  