84 So. 185 | Miss. | 1920
delivered the opinion of the court.
The appellants, Courtney Bros., formerly a partnership composed of A. J., O. D., and S. W. Courtney, by bill in chancery sought to enjoin the levy of an execution issued upon a judgment against them rendered in the circuit court in favor of the defendant plow company for an amount exceeding three thousand dollars. The bill admits an indebtedness due by the complainants to the defendant plow company, but claims that the amount of the judgment is largely in excess of the true amount of the debt. The judgment is alleged in the bill to be void for several reasons. The answer denied the material allegations of the bill, but admitted that the judgment was excessive to the extent of a few hundred dollars. The defendant, by cross-bill, asks that a decree be rendered in its favor for the true amount of the debt, with costs and damages, to which cross-bill an answer was
In bis-decree tbe chancellor adjudged: First. That the judgment at law was not obtained by fraud. Second. That this law judgment was void, but represented the true amount of the indebtedness due by the com lain-ants, the three Courtney brothers, to the John Deere Plow Company, with the exception that it was excessive to the amount of six hundred and thirty-six dollars and sixty-eight cents, which made the true amount of the indebtedness due the plow company two thousand seven hundred and ninety-eight dollars and seven cents, principal and interest. Third. The injunction was made perpetual as to the sum of six hundred and thirty-six dollars and sixty-eight cents, and dissolved as to the sum of two thousand seven hundred and ninety-eight dollars and seven cents. Fourth. The costs of the litigation were taxed as follows: Four-fifths of it aga - st complainants, and one-fifth against defendant, John Deere Plow Company. Fifth. Five per centum statutory damages in the sum of one hundred and thirty-nin do! lars and ninety cents were awarded the defendant plow company, against complainants and the sureties on their injunction bonds. The costs were also adjudged against the bondsmen as well as the complainants. Sixth. The decree' awarded a personal judgment against the complainants and their bondsmen for the entire amount of the indebtedness found' due the plow company, and decreed that execution, might issue on this judgment. From this decree the appellants prosecute an appeal.
Under'section 623 of the Code of 19061 (section 383, Hemingway’s'Códé), upon the dissolution of this injunction in part it was proper- to award the appellé damages at the rate of five per centum. It was error, however, to render a personal decree for the true amount of the indebtedness found due against complainants and the sureties on their injunction bonds. Section 622 of
In this case when these bonds have been certified by the chancery clerk to the clerk of the circuit court, execution may be issued by the circuit clerk against the obligors in these bonds for the true amount of the indebtedness as ascertained by the chancery court. As is said in the opinion in Steadmam v. Butler, 95 Miss. 695, quot ing from page 698, 49 So. 614, 615:
“On dissolving the injunction the decree of the chancellor should have been limited merely to a decree dissolving the injunction and rendering such judgment on the bond as defendants were entitled to as damages for the improper suing out of the injunction, and should not have extended further.”
In this case the-judgment of the chancellor should merely have extended to giving the judgment on the bond for- the five per centum damages above referred to. Quoting again from the same case-:
“What shall be subsequently done is expressly declared by section 622, Code 1906, and only the method there outlined can be pursued in order to create liability on the bond and enforce collection on same. By this section, when an injunction is sought to enjoin proceedings at law on a judgment for money, and the injunction is dissolved, the decree of dissolution itself has the forc< and effect of a judgment against the obligors in the bond, and, when it is certified by the clerk of the court in which it is filed to the clerk of the court in which judgment is rendered, execution may be issued against
The decree of the chancellor went too far in rendering a personal decree against the obligors on these injunction bonds for the true amount of the indebtedness. To this extent this decree will be reversed, and a proper decree will be entered here.
Affirmed in part, and reversed in part.
