Atkinson v. Foxworth, 53 Miss. 733

Atkinson v. Foxworth

53 Miss. 733 | Miss. | 1876

Campbell, J.,

delivered the opinion of the court.

The judgment in this case will be reversed, because the value of the mules was not assessed separately as to each mule, and the judgment is for a sum in gross. The judgment by nil dicit against the defendants in the attachment will remain undisturbed by this judgment of reversal. A writ of inquiry will be awarded to assess the value of the mules, as provided by § 1448 of the Code ; and, when it shall be proposed to enter judgment against the plaintiff in error, as surety on the replevy bond of Edward E. E. Magee, he will have the right to show cause against such judgment by setting up any matter which operates as a discharge of the obligation of his bond, or which goes to a denial of the execution or the validity of the bond. Any one against whom it is proposed to take a judgment has the right to be heard to say why such judgment shall not be rendered. Jones v. Coker, ante, 195. In the case at bar the bond of the surety is what connects him with the case. It is by virtue of that, if at all, that judgment may be rendered against him, as a consequence of a finding for the plaintiff of the issue between the parties. Until a verdict for the plaintiff, the sureties on the bond are in no danger of a judgment against them. Before that they are not called on to speak in their defence. They cannot, as sureties, *740and in their names, plead to the action or interpose any defence, for the action is not against them. Their liability is only for a delivery of the property replevied, or payment of its value, as assessed. Their concern with the case commences at the point where their responsibility begins, and liability to a judgment against them arises, i. e., at the finding of the issue in favor of the plaintiff. They may then show any thing which furnishes a legal reason for not entering judgment against them on the finding of the issue in favor of the plaintiff. They may contest original liability on the bond, or show a discharge from its obligation, but they cannot complain of mere errors in the action against their principal. They cannot make any defence to the action, except such as will discharge them. Therefore the errors assigned by the plaintiff in error in this case are not available to him, except as they come within the rule here laid down. His right to defend below, and to complain here, commenced after the finding against the defendants in the attachment. If the attachment had been void, the case would be different; but it was not void.

The most important assignment of error is that the bond of the plaintiff in error is void, because the court had no right, in the given case, to require a new bond. If it be true that a replevy bond had been given under § 1439 of the Code of 1871, or the corresponding article of the Code of 1857, p. 375, art. 8, and the property was restored to the defendant, who replevied it, the court did not have the right to exact a new bond; and whatever validity such bond might have, as the foundation of an action, it could not link the surety to the attachment suit, so as to subject him to the judgment provided by statute, as a consequence of the finding of the issue in favor of the plaintiff.

The remedy for an insufficient “ bond or security ” in such case is provided by § 1441, Code of 1871 (Code of 1857, p. 376, art. 10) ; and there is no other.

The transcript of the record does not present the question of the alleged invalidity of the bond on which judgment was rendered in such manner as to call for its final decision; but this and all other questions involved can be formally and distinctly presented in the court below.

The judgment is reversed.