Cahn v. Wright, 80 So. 494

80 So. 494 | Miss. | 1918

Smith, C. J.,

delivered the opinion of the court.

This is a motion to correct a judgment rendered at the March term, 1916, of this court. This suit was one begun in a court of unlawful entry and detainer in which there was a judgment for the plaintiff. The defendant appealed to the court below, a circuit court, his appeal bond being conditioned “to pay such judgment as the circuit court may render against him.” The defendant having obtained a judgment in the court below, the cause was appealed to this court by the plaintiff, and at the March term, 1916, thereof, it was ordered and adjudged that the judgment of said circuit court rendered in this cause at the May term, 1913, on the 22d day of May, 1913, be and the same is hereby reversed, and this cause remanded, and that appellee do pay' the costs of this appeal to be taxed, etc.

This motion, which was filed during the present term, “moves the court to retax the cost in this cause and to tax same against the appellee, Samuel Wright, and Alfred Stoner and W. M. Whittington, sureties on the appeal bond of the appellee, etc.,” executed by the ap-pellee in order to transfer the cause from the unlawful entry and detainer court to the court below.

Two questions are presented to us by the motion: First, should the sureties on the appeal bond executed by,the'plaintiff in order to transfer the cause from the unlawful entry and detainer court to the circuit court have been taxed with the costs incurred on the appeal from the circuit court to this court? And, second, should that question be answered in the affirmative, can the judgment rendered by this court at the March, 1916, term thereof, be now corrected so as to tax them therewith?

The bond here in question in compliance with the statute regulating appeals from an unlawful entry and detainer court to a circuit court is conditioned, not to pay such judgment as the supreme court may render, but such as may be rendered by the circuit court, and, since sureties are liable only in accordance with their undertaking, the first question must be answered in the negative. 15 C. J. 227.

The case of Martin v. Kelly, 59 Miss. 652, is not here in p<sint for the reason that the bond there in question was a bond for costs, executed in the court below under the provisions of section 572, Bevised. Code of 1871, and was conditioned to pay “all costs accrued, or to accrue, in such suit;” and the costs which accrued in this court on appeal thereto were, of course, necessarily held to have accrued in the suit, there being no provision either in the statute or the bond limiting the liability of the sureties to the payment of costs which might accrue in the court of first instance. The judgment rendered in this court was as much a proceeding in the suit as that rendered in the court below.

The negative answer to the first question renders an answer to the second unnecessary.

Overruled.