Goyer Co. v. Jones

79 Miss. 253 | Miss. | 1901

Terral, J.,

delivered the opinion of the court.

The Goyer Company, in a j us tice of the peace court, sued M. B. Jones upon an account rendered for |159.23, and had judgment. Said M. B. Jones appealed this cause to the circuit court, and gave an appeal bond, with R. A. Jones as surety, conditioned ‘ ‘ to pay such judgment as said circuit court may render against said M. B. Jones.” More than four months after the execution of said appeal bond, an involuntary petition of bankruptcy was filed against said M. B. Jones, upon which he was adjudicated a bankrupt and received his discharge. Afterwards, when said cause came on to be tried in the circuit court, where the Coyer Company had obtained leave of the bankrupt court to prosecute it to judgment, M. B. Jones pleaded his discharge in bankruptcy, and the cause was submitted to the circuit judge, without jury, and he gave verdict and judgment for defendant. The appellant insists that, as section 16 of the bankrupt law preserves the liability of any person who is in any manner a surety of a bankrupt, he should have been permitted to take a judgment in the circuit court on the appeal bond against both M. B. and R. A. Jones, with a view of having the execution of said judgment stayed perpetually as to M. B. Jones, and for the sole purpose of enforcing the judgment as to R. A. Jones. The bond stipulates only for the payment of such judgment as may be rendered in the circuit court against M. B. Jones. In effect, it stipulates only to pay such valid judgment as the circuit court may render against M. B. Jones, and, as no valid judgment, under his plea of discharge in bankruptcy, could ever be rendered against him, the liability of the surety, R. A. Jones, is also determined, because the contingency upon which his liability depended can never happen. In Wolf v. Stix, 99 U. S., 1 (25 L. Ed., 309), it is said: “The cases are numerous in which it has been held, and, we believe, correctly, that, if one is bound as surety for another to pay any judgment that may be rendered in a specified action, if the judgment is defeated by the bankruptcy of the person for whom the obligation is assumed, the surety will be released. The obvious reason is that the event has not happened on which the liability of the surety was to depend. Of this class of obligations are the ordinary bonds in attachment suits, to dissolve an attachment, appeal bonds and the like.” This view of the law is supported by Collier. Coll. Bankr. (3d ed.), 180-184.

Affirmed.