34 Miss. 368 | Miss. | 1857
delivered the opinion of the court.
This was a proceeding in the Circuit Court of Monroe county, by the plaintiff in error, to supersede an execution issued against him at the instance of the defendant in error.
The facts are as follows : Cunningham recovered a judgment, in 1852, against E.. S. Jones. An execution was issued on this judgment, and a forthcoming bond taken, with Coopwood as security, which being forfeited, an execution was issued thereon, and was returned by the defendant in error, who was then sheriff of said county,, “Levied on one negro boy, named Henry, as the property of the defendant, B.. S. Jones.” ■ The sheriff, failing to return the execution at the proper time, Cunningham made a motion against him, and recovered judgment under the statute.
After this recovery, the plaintiff in error, without notice to the security, Coopwood, obtained leave from the court to amend the above return, so as to show a disposition of the boy, with a view of having an execution issued on the forfeited forthcoming bond for the. benefit of him, the sheriff.
The most important question is, whether the court could permit the amendment to be made, without notice to the parties interested as defendants. By the return, as made, the judgment was, in law, satisfied; and so long as this return stood upon the record, no other execution could be issued. Coopwood was, according to the record, discharged; and the amendment having the effect of restoring the liability, he, of course, ought to have been duly notified of the application, and been placed in an attitude to make his defence. The amendment was therefore clearly void as to the security. But it is said that this was matter of discretion in the court below, and cannot be assigned here as error. The sheriff is now the real party interested in the judgment, and must be held to a rule different from that which would apply if he were acting in his official capacity, having no interest in the controversy.
Judgment reversed, and execution quashed.
