87 Miss. 595 | Miss. | 1905
delivered the op inion of the court.
On an issue whether the attachment was properly sued out, Code 1892, § 166, provides that, when the verdict is for the defendant, he may recover damages. In the case before us, the affidavit being on the ground of nonresidence, which could not be denied in this instance, the court allowed a writ of inquiry and awarded damages on the attachment bond, the jury having-found on the main issue that there was no debt. Under these circumstances, the right to sue on the bond for damages is clear—Buckley v. Van Diver, 70 Miss., 622 (12 South. Rep., 905)—and we see no reason to force defendant to a new and independent action.
Affirmed.
After the delivery of the foregoing opinion, counsel for appellant filed a vigorous suggestion of error, to which the court responded as follows:
delivered the response of the court to the suggestion of error.
The objection that the attachment bond was not put in evidence on the trial of the claim for damages was made here for the first time. It was not made a ground in the motion for a new trial in the court below; the attention of the circuit judge was never called to it. If it had been, a correction was easy by permitting its introduction there. We decline to reverse on this state of facts.
It seems that the judgment on the issue of debt.or no debt was decided for defendants, appellees here, and, notwithstanding the declaration was brought by Cassius M'. Carrier & Son, a corporation, the judgment is, on that issue, “that defendants do have and recover of E. M. Carrier and W. B. Burk, composing the firm of Cassius M. Carrier & Son,” the costs. The judgment on the claim for damages is “that defendants do have and recover of the plaintiffs, Cassius M. Carrier & Son, and the sureties upon their attachment bond)” the sum recovered and all costs. This latter judgment we think good, on its face. The former is technically incorrect, and is susceptible of amendment at any time, under Code 1892, § 940.
Now, no objection or hint of objection on this score was made in the court below. If the court’s attention had been called to it, it could have been corrected in five minutes. There is no mention made of it in the motion for a new trial below; there is no hint of it in the assignment of errors in this court, nor is there any in the original briefs of counsel on the appeal. It appears for the first time in the suggestion of error, and we decline to reverse because of it now.
An execution for costs on the first judgment, unless amended, could not properly issue against Cassius M. Carrier & Son as a corporation, because not so rendered, and so the corporation cannot complain. It could not issue against Cassius M. Carrier & Son as individuals, because they are not parties, as such, and are not, as such individuals, appealing.
Suggestion of error overruled.
