Evans v. King-Peoples Auto Co., 99 So. 758

99 So. 758 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellant, Evans, bought from the King-Peoples Auto Company, a partnersehip, a certain automobile, paying part cash and giving deferred notes for the balance. The notes, amounting to sixteen hundred twenty-eight dollars and fifty cents principal, with interest and attorney’s fees, becoming’due and unpaid, suit was filed and a writ of seizure issued to seize the said automobile for the purchase money thereof. Evans, Flannigan, and Bright executed a bond which, omitting the formal parts and signatures, reads as follows.-

“We, C. F. Evans, principal, and W. E. Flannigan and L. A. Bright, as sureties, are held and bound to pay King-Peoples Automobile Co. the sum of thirty-two hundred fifty-seven- dollars, unless the said C. F. Evans shall satisfy any judgment which may be recovered against him by said King-Peoples Automobile Co. in his attachment suit against the said C. F. Evans for sixteen hundred twenty-eight dollars, returnable before the circuit court of the Second judicial district of Tallahatchie county on the 1st Monday of September, A. D. 1920.”

At the return term of the circuit court the cause was tried and the jury returned a verdict for plaintiff for sixteen hundred twenty-eight dollars and fifty cents principal, sixty-five dollars interest, and one hundred sixty-nine dollars and thirty-five cents attorney’s fee, and found by their verdict that the said automobile was entitled to be subjected to the said indebtedness. The court thereupon entered a judgment reciting the verdict and facts, reading:

“It is therefore considered and ordered that -the said plaintiffs L. B. King and Ben Peoples, partners under the firm name and style of King-Peoples Automobile Company, do have and recover from the defendant C. F. Evans and L. A. Bright and W. E. Flannigan, the sureties on his bond, the sum of eighteen hundred sixty-three dollars and eighty-five cents, together with all costs herein, and that one case sport model automobile No. 9N 36162, in the possession of the defendant, may be subjected to the payment thereof in so far as it will discharge said indebtedness, and the sheriff is hereby authorized and directed to take into his possession said automobile and sell the same according to law to apply on said indebtedness, for all of which execution may issue.”

Thereafter execution was issued and the automobile sold by the sheriff, and an execution was issued to Sunflower county against the surety Flannigan, the judgment having been rendered in Tallahatchie county, and execution was placed in the hands of the sheriff of Sunflower county, whereupon the said W. E, Flannigan sued out a writ of injunction against the execution which had been levied upon his land, which injunction suit was answered by the sheriff of Sunflower county and King and Peoples ^doing business under the firm name of King-Peoples Auto Company, and on the hearing the injunction was dissolved on the 20th day of December, 1921, by the chancellor, from which judgment an appeal was prosecuted-to this court, where the judgment of. the chancellor dissolving the injunction was affirmed. .See Flannigan v. King-Peoples Auto Co., 132 Miss. 95, 94 So. 841, 95 So. 521.

W. E. Flannigan, at the March term, 1922, of the circuit court of Tallahatchie County, filed a motion to set aside and vacate the judgment rendered at the September term, 1920, in this cause, and to enter a corrected judgment, alleging in his motion that the judgment rendered against him personally was' largely in excess of the value of the automobile, and that the sheriff tendered him the bond and he signed it without reading it, thinking it was the ordinary forthcoming bond provided for under the statute in proceedings to enforce purchase-money liens. This motion was taken under advisement by the circuit judge, and on the 16th day of January, 1923, the circuit judge entered an order on the minutes attempting to sustain the said motion, reciting in this order that there was a mistake, and that the judgment actually entered was not the judgment of the court, and should not have been entered by the clerk, and entered in lieu thereof the following judgment (after reciting facts):

“It is therefore ordered and adjudged that the plaintiffs L. B. King and Ben Peoples, doing business under the firm name of King-Peoples Auto Company, do have and recover of the defendant C. F. Evans the sum of eighteen hundred sixty-three dollars and eighty-five cents, together with costs herein, and that one Case sport model automobile, No. 9N 36162, in the possession of the defendant on a forthcoming bond, be- restored to the sheriff and subjected to the payment thereof in so far as it will discharge the said indebtedness; that, upon failure of the said C. F. Evans, the defendant, to restore the said car to the said sheriff, then the plaintiff do have and recover of and from W. E. Flannigan and L. A. Bright,. sureties on his bond forthcoming, the value of said car, which is hereby found to be. less than said judgment for all of which let execution issue.”

At the September term, 1923, of the circuit court in said county, a motion was made by King-Peoples Auto Company to set aside and vacate the order entered by the court the 16th day of January, 1923, which motion was by the court sustained, and the original judgment entered at the September term, 1920, was restored, from which last judgment this appeal is prosecuted.

It will be seen from the opinion of this court above cited, 132 Miss. 95, 94 So. 841, 95 So. 521, that the bond given by the defendant Evans with Elannigan and Bright as sureties, was a valid bond, and authorized judgment to be entered thereon for the amount of the debt. The judgment therefore was not an unauthorized judgment, but a judgment which could rightfully be entered and ought to have been entered because its condition is to pay the debt and not to restore the automobile seized. There is nothing in the record to show that the court intended to enter any other judgment at the time when the judgment was rendered than the one it did enter. There was no showing made of any kind that there was any error of any kind by the court, or any misunderstanding of the judgment to be entered by the clerk other than the recital in the judge’s order of January 16, 1923, about one and one-half years after the rendition of the judgment, and in our opinion this is not a case which warrants the judge in setting aside a judgment rendered during the term, after the expiration of the term, on the ground of mistake or error in rendering the judgment. The record should show wherein the judgment entered was not the judgment which was actually pronounced by the court on the verdict of the jury. Consequently the judge did not err in setting aside this vacation order and reinstating the original judgment.

The judgment will therefore be affirmed.

Affirmed.