Writs of attachment obtained under the statute in aid of suits at law to enforce perfected statutory liens upon personal property, are by analogy to the decision in Weston v. Jones,41 Fla. 188, 25 South. Rep. 888, in effect "statutory chancery writs," and prior to Chapter 8477, Acts of 1921, they were "not subject to attack as are writs of attachment at law" in actions of assumpsit. See Alford v. Leonard, ___ Fla. ___,102 South. Rep. 885. Such writs in aid of foreclosure proceedings are not issued to obtain liens, but merely to secure within the jurisdiction of the court, the presence of the property upon which a perfected statutory lien already exists. When the action as brought under the statute to enforce the perfected statutory lien in this case, the statutes did not contemplate that the property could be retaken as of right by the defendant in foreclosure proceedings upon giving a bond conditioned to "have the property forthcoming * * * and abide the final order of the court," as in actions at law in assumpsit; and the court had no authority to dissolve the attachment as in ordinary law actions in assumpsit. The property was not released under an order made in the foreclosure proceedings, and the defendant at that time had no right to a redelivery of the property on a statutory forthcoming bond; *Page 293 therefore the bond given was in effect a common law bond; and as there could then be no final order dissolving or sustaining the attachment where the attachment is in aid to foreclosure proceedings, the condition of the bond that was given to "abide the final order of the court," could legally have reference only to the final order or decree in the foreclosure proceedings in aid of which proceedings the attachment was issued pursuant to the statute; consequently the attempted dissolution of the attachment did not affect the liability of the sureties on the defendant's common law bond given in this case to indemnify the plaintiff for defendant's failure to have the property forthcoming to abide the final order of the court enforcing the lien that existed upon the property independent of the writ of attachment. Since this cause of action arose, Chap. 8477, Acts of 1921, has been enacted, but it does not affect the disposition of this cause involving contract rights.
STRUM, J., concurs.
ON PETITION FOR REHEARING. 1. In a statutory action for the enforcement of a perfected lien when an attachment has issued at plaintiff's request an order of the court, dissolving the attachment upon a traverse of the allegations of the affidavit required by the statute to be made and a jury finding for the defendant, does not discharge the sureties upon the bond given by the defendant to have the property forthcoming to abide the final order of the court.
2. The final order of the court in such case is the final order in the statutory proceeding for the enforcement of the lien.
Petition denied. *Page 294 J. V. Walton and J. N. Blackwell, for Plaintiff in Error;
Hilburn Merryday, for Defendant in Error.