Jones v. Coker

53 Miss. 195 | Miss. | 1876

Campbell, J.,

delivered the opinion of the court.

Sureties on an appeal bond, executed in an appeal from the judgment of a justice of the peace to the Circuit Court, were discharged in bankruptcy, after they executed the appeal bond and before the trial in the Circuit Court, which resulted in a recovery against the principal obligor who was the defendant in the Justice’s Court. A judgment was entered in the Circuit Court against the principal and his sureties jointly, and fieri facias issued on this judgment, and was levied on certain chattels of the sureties, who exhibited their bill in chancery to enjoin the execution on the ground that the judgment was void, because rendered against them on a debt from which they were discharged by°bankruptcy, and because they had no opportunity to plead this discharge before judgment on the bond against them. The injunction was dissolved on motion upon the face of the bill, and afterwards, at the same term of the Chancery Court, a demurrer to the bill was sustained, and it was dismissed. Hence an appeal.

It was not erroneous to dispose of the demurrer merely because the injunction had been dissolved at the same term. Sustaining the demurrer disposed of the bill; and it was not erroneous to dismiss the bill (there being no application for leave to amend it), if the demurrer was well taken.

If the judgment against the complainants is absolutely void, their remedy was complete at law ; and chancery had no right to enjoin the sale of chattels in the absence of any special ground for equitable interposition. Beatty v. Smith, 2 S. & M. 567; Boone v. Poindexter, 12 S. & M. 640. But the judgment was not void, because it was against obligors who had been discharged as bankrupts. A discharged bankrupt waives his defence as such by not pleading it. Marsh v. Mandeville, 28 Miss. 122.

If it be true, as a legal proposition, that the complainants could not interpose the defence of bankruptcy, and claim its protection as a shield against the judgment being rendered against them, because of the legal impossibility of doing so, a chancery court could relieve them, if their discharge in bankruptcy discharged them from liability on the appeal bond.

But it is not.true that the complainants could not interpose their discharge in bankruptcy as an objection to judgment being rendered against them as well as their principal in the bond. By executing the appeal bond they became parties to the suit, at least so far as to entitle them to be heard for their own protection. It was their right to object to the rendition of a judgment against them on the bond because of their discharge from it by matter ex post facto. They should have been present at the trial, actually, in person, or by attorney, as they were constructively, to object to the judgment against them and to show why it should not be rendered. It is true that judgment against all the obligors in the appeal bond followed a recovery by the plaintiff against the principal, who appealed, according to the provisions of the statute, but that was because there was no sufficient legal objection interposed. If the sureties had a release or discharge from .the bond which had inured to them after the execution of the bond and before judgment on it, they had the right, and it was their duty, if they desired to avail of it, to prevent judgment on the bond against them, to have set up this defence in the Circuit Court before judgment, when an issue of law or fact would have been made up and tried. Not having availed themselves of their right to object to judgment against them on the bond, they cannot be heard in chancery to complain of the judgment. Thomas v. Phillips, 4 S. & M. 358. Every one against whom a judgment is proposed to be rendered has the right to be heard in opposition to it. If the case be such that a judgment against all the obligors in a bond is declared by law to follow a verdict or judgment against the principal, the bond is the instrument subjecting sureties to liability to such judgment, and any .thing which discharges from the bond, and is availed of by being set up as a defence, bars a judgment against him who has been so discharged.

This view renders it needless to consider whether their discharge in bankruptcy would have been available against the judgment on the bond. Decree affirmed.