68 So. 137 | Ala. | 1915
Complainants (appellees), on request of J. D. Evans, who' had been sued, signed a bond for the -dissolution of a garnishment and the discharge of garnishees who had been brought in, according to provisions of section 4313 of the Code. This bond was approved by the clerk of the court in which the proceeding was pending, although it was not signed by Evans, and the garnishees were accordingly discharged. Afterwards judgment was rendered against Evans and complainants in this bill; this in pursuance, as doubtless the court intended, of the following provisions of the above section: “And upon the trial of the cause, if judgment is rendered or ascertained to exist in favor of the plaintiff against the defendant, the court must also render judgment against the obligors in the bond for the amount of such judgment, interest thereon, and costs of suit.”
Execution having been issued and levied upon the property of some of the sureties they filed the bill in this cause against the plaintiff in execution and the sheriff, praying that they be perpetually enjoined and restrained from proceeding against these complainants, under the judgment rendered by the law court-.
So, then, the question is whether the bond in the case before us was void and of no effect as a bond under section 4313, and whether in consequence the summary judgment against these complainants was altogether ineffectual, for the reason only that the defendant in the law court failed to attach his signature thereto.
In his decree granting relief the chancellor has stated that he sought to follow the decision in Painter v. Mauldin, 119 Ala. 89, 24 South. 769, 72 Am. St. Rep. 902. The rule of that case, as applicable to the official bonds of guardians, has been changed since the deci
But it remains to institute some inquiry as to the principle of law laid down in Painter v. Mauldin. It was an admitted fact in that case that the guardian himself, the principal, though his name appeared in the body of the bond, never signed the bond. The question there at issue was stated by the court to be whether the sureties were bound, and the court’s right to issue execution on the bond, and this question, as the court observed, had been variously decided by courts of great learning in other jurisdictions. The decision announced was that the bond, not having been signed by the guardian as principal, was not a statutory bond, and did not authorize the issuance of execution against the sureties under the statute. The ground of the opinion does not appear except inferentially. After consulting Gay v. Murphy, 134 Mo. 98, 34 S. W. 1091, 56 Am. St. Rep. 496, cited in the opinion, and the numerous adjudications referred to in the cited case, we confidently venture the statement that the conclusion in Painter v.
Here we have a different case, and the difference is' entirely sufficient to distinguish this from the case considered in Painter v. Maulclm. Here the bond was conditioned upon the failure of Evans, the defendant in the law court, to pay, or cause to be paid, to plaintiff any judgment that might be rendered against him. The signers were sureties for Evans. But a bond is nothing more than an obligation in writing and purporting to be under seal, binding the obligor to* pay a sum of money to the obligee. The bond in this case was a “bond given” within the purview of section 4313,-though it was not signed by any person for whose benefit it was given. The name of Evans, for whose benefit it was given, did not appear in the body of the bond
, (3) It appeared that shortly after the judgment was rendered against Evans and these complainants the latter appeared in the law court and moved the court to set aside the judgment as to them on substantially the grounds now alleged in the bill; thus, in a way, making themselves parties. The law court overruled the motion. This is now urged as res adjuclicata of the present bill. It is true, of course, that in an action to annul a judgment the judgment assailed cannot be pleaded as res adjudicata; but that principle can only apply to grounds of nullity not considered and determined in the judgment itself. If the judgment were a nullity for the reasons assigned, the law court certainly would have had power to so declare, and its judgment on the motion, as long as it remained unreversed, was most likely a thing judicially determined as against any further action of nullity by the same parties, against the same judgment, on the same grounds.—Hoggatt v. Crandall, 39 La. Ann. 976, 3 South. 89. But in view of what we have said above, this question may be left without further statement.
For the reasons assigned, the decree of the court below will be reversed, and a decree here rendered dismissing the bill.
Reversed and rendered.