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June 4, 1997


Appeal from the Circuit Court of Lake County. No. 95--LM--4293. Honorable Jane Drew Waller, Judge, Presiding.

Released for Publication July 11, 1997. The Docket Number of this Case has been Corrected July 22, 1997.

Presiding Justice Geiger delivered the opinion of the court. Rathje and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

Saul Azar, the plaintiff in this cause, brought an action on a replevin bond against the defendant, Statewide Insurance Company (Statewide). See 735 ILCS 5/19--127 (West 1994). Statewide was the surety on the bond, which had been posted in the amount of $6,000. The trial court granted Statewide's motion to dismiss, and the plaintiff timely appeals. We reverse and remand for further proceedings.

Azar's complaint, filed on December 29, 1995, alleged that he had been named as the defendant in a prior replevin action filed by his former tenants, Jeffrey Fishman and Rochelle Fishman. In this underlying replevin action, the Fishmans sought to recover certain of their personal belongings being held by Azar. On April 22, 1994, the trial court issued an order for replevin, requiring Azar to return these personal belongings to the Fishmans. Before this order of replevin was executed, the Fishmans gave the sheriff of Lake County, Clinton Grinell, a statutory replevin bond in the sum of $6,000. The bond was executed by the Fishmans as principals and by Statewide as surety.

On August 25, 1994, after the order of replevin had been executed and the property returned to the Fishmans, but prior to the trial on the underlying action, the trial court dismissed the case as a discovery sanction and because the Fishmans had failed to appear. The trial court also awarded damages in favor of Azar and against the Fishmans in the amount of the bond, $6,000, plus costs.

In the instant suit against Statewide, Azar now seeks to recover as damages the full amount of the replevin bond. Azar alleges that under the terms of the bond Statewide and the Fishmans bound themselves jointly and severally to defend, save, and indemnify the sheriff and his successors from all actions, suits, costs, and damages arising from the execution of the writ of replevin. Azar contends that this bond obligation could have been discharged only in the following manner: 1) by the Fishmans prosecuting the underlying action to effect and without delay; and 2) by the Fishmans returning the property to Azar had the trial court ordered them to do so, paying all costs and damages occasioned by wrongfully obtaining the order of replevin.

Azar's complaint further alleges that the Fishmans did not prosecute the underlying replevin action with effect, but wholly failed to do so, as evidenced by the trial court's August 25, 1994, order dismissing the action and awarding him damages in the amount of $6,000, plus costs. Azar alleges that an action has accrued to him to demand the sum of $6,000, which Statewide, the present defendant, has refused to pay and that the refusal to pay the amount of the bond is vexatious and without reasonable cause (citing 215 ILCS 5/155 (West 1994)).

In moving to dismiss the action on the bond, Statewide argued that the damages awarded in the underlying replevin action were intended to be a sanction against the Fishmans. Statewide argued that, in the absence of an order to return the property, it was not liable as the bond surety. See Danford v. Watkins, 337 Ill. 222, 168 N.E. 912 (1929). On April 24, 1996, the trial court granted Statewide's motion to dismiss.

The replevin bond statute states in pertinent part:

"The plaintiff *** shall give to the sheriff or other officer a bond with sufficient security in double the value of the property about to be replevied, conditioned that he or she will prosecute such action to effect and without delay and make return of the property to the defendant if return of the property shall be awarded or will deliver the same *** and save and keep harmless such sheriff or other officer as the case may be, in replevying such property and further conditioned for the payment of all costs and damages occasioned by wrongfully obtaining out the order for replevin ***." 735 ILCS 5/19--112 (West 1994).

Section 19--123 of the Code of Civil Procedure (Code) provides:

"If the plaintiff in an action of replevin fails to prosecute the action with effect, or allows a voluntary or involuntary dismissal, or if the right of property is adjudged against the plaintiff, judgment shall be entered for a return of the property if such property has been delivered to the plaintiff, and damages for the use thereof from the time it was taken until a return thereof is made, unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, in which event judgment may be entered against the plaintiff for costs and such damage as the defendant has sustained; or if the property was held for the payment of any money, the judgment may be in the alternative that the plaintiff pay the amount for which ...

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