Ark. Code Ann. § 16-110-117 (2020)
Bond of defendant for retention of property
- The county sheriff may deliver any attached property to the person in whose possession it was found upon the execution, in the presence of the county sheriff, of a bond to the plaintiff, by the person, with one (1) or more sufficient sureties to the effect that the obligors are bound, in double the value of the property, that the defendant shall perform the judgment of the court in the action, or that the property or its value shall be forthcoming, and subject to the orders of court for the satisfaction of the judgment.
- For the purpose of taking this bond, the county sheriff shall cause the property to be appraised by three (3) disinterested householders, to be selected and sworn by him or her to make fair appraisement on the order of attachment.
- In any proceeding on this bond, it shall not be a defense that the property was not subject to the attachment.
History. Civil Code, §§ 234-236; C. & M. Dig., §§ 514-516; Pope's Dig., §§ 551-553; A.S.A. 1947, §§ 31-124 — 31-126.
Case Notes
Constitutionality.
Absent a judge's participation or supervision, there is a significant risk that a writ of attachment will be issued even though the statutory attachment procedures have not been met; this expressly overrules Springdale Farms, Inc. v. McIlroy Bank & Trust, 281 Ark. 371, 663 S.W.2d 936 (1984), which held that the issue of prejudgment attachments by the clerk met the “safeguards test” and satisfied due process. McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).
Interpleader.
The execution by the person in whose possession attached property is found of the bond provided for in this section does not estop him from asserting his claim to the property by an interplea filed in apt time; further, he may prefer his claim without first surrendering the property to the officer holding the attachment. Applewhite v. Harrell Mill Co., 49 Ark. 279, 5 S.W. 292 (1887).
Bond of defendant does not release plaintiff's attachment lien but merely transfers custody of property from sheriff to defendant; thus, when court found property to belong to intervener, plaintiff's lien and the bond given therefor by defendant, were discharged. Rogers v. Reliable Feed Co., 169 Ark. 391, 275 S.W. 705 (1925).
Replevin.
The owner of personal property seized under attachment against the property of another may maintain replevin against the officer having possession of it. Willis v. Reinhardt, 52 Ark. 128, 12 S.W. 241 (1889).
Satisfaction of Judgment.
The obligors in a bond executed under this section have a right to retain the property until the court orders a sale of it to satisfy the judgment against the defendant; when such order is made, they may pay off the judgment or deliver the property or its value to the sheriff. Adams v. Jacoway, 34 Ark. 542 (1879).
A bond can only be satisfied by actual delivery or by bringing the property forward, pointing it out and tendering it to the officer; telling the officer where the property is and to go and get it is not sufficient. Chapline v. Robertson, 44 Ark. 202 (1884).
In an action upon a bond, the officer's return of the failure to deliver made upon the process is conclusive. Chapline v. Robertson, 44 Ark. 202 (1884).
The officer's return is not conclusive as to the third parties. Straub v. Wooten, 45 Ark. 112 (1885).
Judgment can only be rendered upon the bond given pursuant to this section when an assessment has been made of the value of the property retained by the principal, and such assessment is made only when the plaintiff demands it. Lowenstein v. McCadden, 54 Ark. 13, 14 S.W. 1095 (1890).
A bond given under this section conditioned that the person in possession, not the defendant, shall perform the judgment of the court in the action cannot be enforced as a statutory bond. Lowenstein v. McCadden, 54 Ark. 13, 14 S.W. 1095 (1890).
The measure of damages for failure to deliver is the value of the property which could have been delivered, and not the amount stated in the bond. Starnes v. Bender, 172 Ark. 788, 290 S.W. 357 (1927).
Sureties.
By executing the bond provided for by this section, the sureties become parties to the suit and subject to summary judgment in the action without notice. Fletcher v. Menken, 37 Ark. 206 (1881).
The sureties cannot set up the defense that the vendor had released his claim upon the chattel. Lott v. Porter, 97 Ark. 97, 133 S.W. 180 (1910).
Cited: McFerrin v. Clarksville Wood Indus., 217 Ark. 383, 230 S.W.2d 49 (1950); Stephens v. Walker, 743 F. Supp. 670 (W.D. Ark. 1990).