[84 NJSuper Page 503] This is an action in replevin. The defendant Richard A. Lowe was sued as the conditional vendee of a 1962 Buick Sport Coupe. The complaint alleged failure to make the monthly payments called for by a conditional
sales contract dated August 15, 1962, by reason of which the entire balance of $3,259.34 was due and owing. Upon the filing of the requisite bond by the plaintiff, the Sheriff of Essex County took possession of the automobile. The defendants thereupon filed a claim of property and tendered the redelivery bond here involved. The car was thereupon released by the Sheriff to the defendants.
No answer to the complaint having been filed, judgment by default was entered against defendant Richard A. Lowe on the 8th day of April 1964. The car was never returned. Plaintiff thereupon obtained the present order to show cause why the National Surety Corporation, as surety on the redelivery bond, should not pay to the plaintiff the amount of the judgment.
The complaint was in the usual form. It sought judgment for possession or, alternatively, judgment for the value of the automobile, plus damages for its unlawful detention and costs. By the judgment, the plaintiff was found to be the owner of the automobile and the judgment was for $2,000, which was determined to be its value.
The bond provides that if the obligors thereon "shall duly return the said goods and chattels in case a return shall be awarded, then this obligation to be void, otherwise to remain in full force and virtue." The applicable provisions of N.J.S. 2A:59-6 provide that the redelivery bond shall be "conditioned for the due delivery of such goods and chattels to the plaintiff, or his legal representatives, in as good condition as they were at the time of making such claim, if they shall be awarded to the plaintiff." While it was conceded at the argument of the motion that the bond in question was a redelivery bond conforming to the requirements of N.J.S. 2A:59-6, it is apparent that it was prepared on the surety's form for a replevin bond by a plaintiff and contains wording prescribed by N.J.S. 2A:59-5.
The first contention of the surety is that any action on the bond in question was required to be commenced by a plenary
suit rather than in the manner followed here. But this argument loses sight of the provisions of R.R. 4:118-6(b) to the effect, substantially, that as a prerequisite to approval of a bond of the type here involved, it was required that the surety submit itself to the jurisdiction of the court, appoint the clerk of the court as its agent for service of process and consent that its liability on the bond might be enforced on motion without the necessity of an independent action. The present bond complied with this requirement and hence plaintiff's motion is properly made.
The surety next contends that it is not liable since the judgment of the court did not award the return of the automobile to the plaintiff. It argues that at the time of the entry of judgment, the plaintiff was required to make a choice as to whether it desired the return of the automobile or a money judgment for its value. It having elected to receive a money judgment, there was no obligation to return the car.
N.J.S. 2A:59-9 provides that, when defendant has made a claim of property:
"If plaintiff in replevin recovers, the value of the goods and chattels as well as the damages of plaintiff shall be found, and plaintiff shall have judgment thereon in damages as well for the value of the goods and chattels as for taking and detaining them. Upon such judgment, plaintiff, in addition to his remedy on the ...