109 So. 801 | Miss. | 1926
Lead Opinion
The court below held that the chancery court had full jurisdiction of the subject-matter of the controversy, and in so far as the correctness of the claim sued on was concerned, the finding of the chancellor upon that question was resadjudicata.
The view of the court below that the chancery court has full jurisdiction of the subject-matter of this controversy was correct. This jurisdiction is expressly given by section 554, Code of 1906 (section 314, Hemingway's Code), which provides that:
"The court in which a will may have been admitted to probate, letters of administration granted, or a guardian may have been appointed, shall have jurisdiction to hear and determine all questions in relation to the execution of the trust of the executor, administrator, guardian, or other officer appointed for the administration and management of the estate, . . . and shall have jurisdiction of all cases in which bonds or other obligations shall have been executed in any proceeding in relation to the estate, or other proceedings, had in said chancery court, to hear and determine upon proper proceedings and evidence, the liability of the obligors in *312 such bond or obligaton; whether as principal or surety, and by decree and process to enforce such liability."
Under section 976, Revised Code 1871, which, in effect, is the same as the present statute, it was held that the chancery court has jurisdiction over suits on an administrator's bond (Walker
v. State,
Upon the question of the effect of the decree of the chancery court adjudging the correctness of the claim of appellee, it appears that in a great majority of the states it is held that such a decree is res adjudicata, but this state is definitely aligned with the minority view that such a decree is onlyprma-face evidence against the surety. In the case ofLipscomb v. Postell,
"It is conceded by counsel that since the decision ofLipscomb v. Postell,
Under the pleadings in the case at bar, we also think it was error to admit in evidence a copy of the bond sued on. Although this suit originated in a justice of the peace court, still section 2730, Code of 1906 (section 2229, Hemingway's Code), requires that any one desiring to sue before a justice of the peace shall lodge with him the evidence of debt, statement of account, or other written statement of the cause of action. The appellee filed a declaration properly charging a breach of the conditions of the bond, but no copy of the bond was annexed to or filed with the declaration as required by sections 734 and 735, Code of 1906 (sections 517 and 518, Hemingway's Code), in all actions founded on any writing. Unless the declaration is amended by attaching a copy of the bond sued on, evidence thereof should be excluded upon proper objection.
Reversed and remanded.
Addendum
On a former day of this term the judgment of the court below in this cause was reversed, and the cause *314 remanded for a new trial as to both of the appellants. The appellee has filed a suggestion of error, in which it is urged that we erred in reversing the judgment against the appellant M.M. Lawson, administrator, and that the judgment should be reversed and remanded for a new trial only as to one of the appellants, the National Surety Company, surety on the administrator's bond. Upon a reconsideration of the cause, we have reached the conclusion that the language of the opinion of the court as previously filed herein, properly leads to an affirmance of the judgment as against the administrator, and a reversal as to the surety. The judgment previously entered will therefore be set aside, and a judgment will be entered affirming the cause as to the administrator, and reversing it and remanding the cause for new trial as to the surety company.
Sustained.