McKinney v. Green, 52 Miss. 70

McKinney v. Green

52 Miss. 70 | Miss. | 1876

Campbell J.,

delivered the opinion of the court.

Green attached for rent due him by Conn, who replevied "the attached'property, with McKinney and Grace as sureties on his rejDievin bond, according to art. 11, p. 341, Code of 1857. ■Conn was cast in the suit and adjudged to pay Green $180 ■and costs, and had not paid thejudgment, and Green brought this action against the sureties on Conn’s replevin bond, assigning as a breach of its condition that Conn had not performed and satisfied the judgment against him. Among other pleas, the defendants in this action pleaded in bar that a writ of error to the judgment of Green against Conn was pending and undetermined. This plea was demurred to and the demurrer was sustained, defendants insisting that the declaration shows no cause of action, and that the demurrer to the plea should Be extended to the declaration.

The plea was demurrable, because a writ of error, even when a supersedeas, suspends nothing more than execution, and does not affect the judgment as a cause of action or as evidence. Besides this, the plea does not aver supersedeas of thejudgment.

The demurrer should have been extended to the declaration. It does not aver that judgment in the replevin was rendered against Conn alone, but such is the conclusion from its expression. If judgment was rendered in that suit, as it should have been, against the sureties, it is clear that no action could be maintained on their bond thus in judgment. If no judgment was rendered against them on their bond in that suit, no action on their said bond can be maintained, for the law requires judgment to be entered against principal and sureties in his replevin bond in that suit, if the trial results against the principal; and to permit a party to neglect to take judgment in such case against principal and sureties, and afterwards to *74maintain an action against sureties, is to allow to him an', option highly prejudicial to the rights of sureties. They are-entitled to have the judgment entered against them in the replevin suit, or not at all, so as to entitle them to a writ of' error to the judgment, and to entitle them to pay the judgment, and have execution for their benefit, as given by statute to-sureties, and to shield them from being pursued on the bond in a separate action, as in this case, before judgment upon writ-of error to the judgment against the principal alone. To' illustrate the impropriety of suit against sureties on a bond in such case, suppose the judgment in the x’eplevin, which ivas against Conn, the principal, was reversed pending the action oil the bond against the sureties, the action would fail upon plea, of that fact. Wherefore, we conclude that the successful lessor in a replevin of the goods must obtain judgment against, the sureties on the bond which conforms to the statute, Ol-ióse his right to resort to the bond. This conclusion does not-impose hardship on him who inadvertently fails to get his-proper judgment, for he has his remedy by writ of error to-correct the judgment. Nor does this view contravene the idea, that the lessor could resort to a separate action on a bond given on replevin by a tenant, which did not conform to the-statute, so as to entitle the obligee to the statutory judgment-on recovery against the tenant, but which is good as a common law obligation.

The judgment is reversed, and judgment here applying the demurrer to the declaration and dismissing the action.