Troy Carriage Works v. Muxlow

Headnote

Replevin—Bond—Justification—Adjournment.

Under sections 580, 1705 of the Code, an adjournment, in the examination of secureties on a bond in replevin, may be for a longer time than to the next judicial day for the purpose of procuring the attendance of sureties or the substitution of new sureties.____

Appeal from an order denying a motion for an order directing the sheriff to deliver to plaintiff the chattel replevied, because de,fendant’s sureties on his bond, given under section 1704 of the Code, to reclaim the chattel, has not justified as required by law.

On October 29, 1895, after examination of one of defendant’s sureties, further examination was adjourned by consent of parties, to-November 7, 1895, at 10 a. m„ On.November 7, 1895, defendant’s attorney gave notice of his engagement in court, and asked that the matter be held till 11 a. m. Whereupon the court made the following order: “ Defendant granted until November 9th, 10 a. m., to give new bond, and to have sureties present for justification.” Whereupon plaintiff made his motion that the sheriff be directed to deliver to him the replevied article, claiming that the court was without authority to make the order of November 7th, and that the adjournment could not be made to a later date than November 8th, the next judicial day; it being provided by Code Civ. Proc. § 1705, that “ the provisions 'regulating the justification of bail contained in article third of title first of chapter seventh of this act, govern, except as otherwise expressly prescribed in this article, with respect to the notice of justification of the sureties, the officer before whom they must justify, the substitution of new sureties or a new undertaking, the examination and' qualifications of the sureties and the allowance'of the undertaking; ” and it being provided by Code Civ. Proc. § 580, that “ for the purpose of justification, each of the bail must attend before the judge at the time and place mentioned in the notice, and be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge, in his discretion, thinks proper. The judge may, in his discretion, adjourn the examination from day to day, until it is completed; but such an adjournment must always be to the next judicial day, unless 'by consent of the parties.”