59 So. 802 | Miss. | 1912
delivered the opinion of the court.
The chancellor did not err in sustaining the demurrer and dissolving the injunction in this case. The Cudahy Packing Company obtained judgment in a justice of the peace court against the Brandt Mercantile Company. An appeal from this judgment was taken to the circuit court,, with Mrs. Amelia M. Bailey as surety on the appeal bond. Judgment was rendered in the circuit court against the Brandt Mercantile Company and Mrs. Bailey, the surety. After the adjournment of the circuit court, and about three months after the rendition of the judgment, the Brandt Mercantile Company was adjudicated a bankrupt. Execution was issued upon the judgment, and levied by the sheriff on the lands of the appellant. She filed her bill to enjoin the sale of the lands. The appellees demurred to the bill, and moved to dissolve the injunction.
Upon the rendition of the judgment in the circuit court the appellant became a codebtor with the Brandt Mercantile Company. It is provided in Code 1906, section 86, that judgment in an appeal from the justice of the peace court shall be rendered against the appellant and his surety jointly. Section 16 of the Bankrupt Act of 1898 (Act July 1, 1898, ch. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]), is as follows: “The liability of a person who is a codebtor with or guarantor, or in any manner a surety for a bankrupt, shall not be altered by the discharge of such bankrupt.
The present case is different from Goyer v. Jones, 79 Miss. 253, 30 South. 651. In that case no judgment had been rendered against the surety on the appeal bond. While the case was still pending on appeal, and had not been tried in the circuit court, the appellant, the principal in the appeal bond, was adjudicated a bankrupt. The appeal bond was conditioned to pay such judgment as the circuit court should render against the appellant, and no judgment had been rendered against him before bank
Affirmed.