Higdon v. Vaughn

58 Miss. 572 | Miss. | 1880

Campbell, J.,

delivered the opinion of the court.

The demuiTer was properly sustained to the second and fourth pleas. The dismissal by the Circuit Court, in April, 1874, of the claim of Fairchild was a determination of the claim as made against him, and the failure to deliver the property to the sheriff was a breach of the condition, of the bond. As to the second plea, which merely states that the court, at the instance of the plaintiff, dismissed the claim, against the consent of the claimant, without showing the ground of the dismissal, the presumption must be indulged that the dismissal was proper. The fourth plea shows that the claim was properly dismissed because no affidavit ivas made by Fairchild ot his right and title to the property levied on.

The demurrer to the replication to the first and third pleas was rightly overruled. The defendant ivas estopped by the judg'ment of the Circuit Court from averring that affidavit was made and filed. The court adjudged that no affidavit had been filed or made, and for that reason dismissed the claim, refusing to recognize Fairchild as a claimant, under sects. 858 and 1456 of the Code of 1871. This is conclusive on Fairchild, and equally so as to his surety, who, as to all that concerns his principal in his controversy with tlie plaintiff, stands in his place and is bound by what binds him. The surety in sucha bond has nothing to do with the trial of the right of property.. His obligation is to deliver the property to the officer if the-claim made by his principal shall be determined against him.. His liability is the consequence of a determination against his-principal, aud a judgment against his principal is conclusive-of such determination, and he cannot go behind that. Atkinson v. Foxworth, 53 Miss. 733, 741. The first and third pleas-present no bar to this action, aud might have been successful^' demurred to, instead of being replied to. It matters not if an affidavit was made and filed, as they aver. The claim was dismissed for want of an affidavit, and the judgment of dismissal cannot be assailed in this action ; and that was a determination of the claim against the claimant, and that was the-contingency on which the property was to be delivered to the officer, according to the condition of the bond.

The eonsideration of the bond was the delivery of the property to the claimant by the officer. Its condition is, among other things, to deliver the property to the officer “ if the claim thereto should be determined against the claimant.” It was determined against the claimant by the dismissal of his claim, and that made the surety liable.

The plea stricken out by the court on the motion of the-plaintiff, before the amended declaration was filed, .not having; been pleaded to the amended declaration, is not properly a subject for eonsideration now ; but it is clear, we think, that it contains no defence to the action. It is, in substance, that the - property wa.s not subject to the attachment. /That is nota bar to this action, which is on the bond by means of which Fairchild got possession of the property levied on, and tliecondition of which is for the delivery of this property to the-officer if the claim made to it by Fairchild should be doter-mined against him. It was determined against him, and the only way to comply with the condition of the bond was to deliver the property to the officer. That was not done, and the obligee of the bond is entitled to recover for the breach of the condition.

Judgment affirmed.