70 So. 895 | Miss. | 1916
delivered the opinion of the court.
This suit was begun in the chancery court of Lincoln county, and is the sequel of a judgment of this court in the case of Geo. T. Douglas et ux. v. Parsons-May-Oberschmidt Co., 101 Miss. 620, 57 So. 624. In the former case the appellees in this appeal made a motion to discharge the supersedeas bond,, which motion was overruled, the court stating:
“It may be, as stated by the bondsmen, that they were misled by appellant into signing the bond, and that one of them notified the clerk, before the bond was filed, not to approve the same; but these matters cannot be adjudicated on this motion, or, for that matter, by'this, court on original proceeding here.”
The appellees here were the sureties on the supersedeas bond in the case from which we have quoted the
The facts developed on the trial are about as follows: •On or about January I, 1911, appellant in the original •case prepared an appeal supersedeas bond, in which the penalty and amount was fixed at two thousand nine hun-dred and. two dollars and sixty-one cents, and appellees, O. L. Burgess, W. H. Furr, and T. M. Smith, signed tin's bond. After this bond was signed, Douglas, the principal, changed the penalty from two thousand nine hun-dred and two dollars and sixty-one cents to eight thousand six hixxxdred dollars, withoxxt the knowledge of the sureties who had signed the bond. After the penalty was changed, C. T. Montgomery signed the bond as a ■surety, not knowing that the pexxalty had been changed. There is some evidence going to show that some of the •sureties told the clerk to strike their names fronj the bond, but this was not done. A proper interpretation of section 1022, Code of 1906, will dispose of this case. This section we qxxote, viz.:
“When a bond, recognizance, obligation, or undertaking of any kind shall be executed in any legal pro
Paraphrasing the first part of this section it amounts to this: When a bond is executed in any legal proceeding, if such bond had the effect in such proceeding that a bond payable and conditioned as prescribed by law would have had, the person executing such bond will be liable to a decree or judgment thereon, “no matter to whom it was made payable, nor what is its amount, nor how it is conditioned.” The balance of the section refers alone to bonds in which the amount of the penalty is entirely omitted, and declares that in such case:
“It shall bind the parties executing it for the full amount for which any bond or undertaking might have been required in the state of case in which it was given. ’ ’
It will be noted that the statute provides for the judgment on bonds that are for no “specified sum,” but does not provide for the amount of the judgment to be taken upon bonds where the amount is less or more than the amount prescribed by law. It merely says that a judgment may be taken on such bond, “no matter to whom
In this case, the sureties agreed to bind themselves to pay a fixed amount, viz., two thousand nine hundred and two dollars and sixty-one cents, in case their principal should lose his case. This is clear, so far as the first signers are concerned; and we think those who signed after the amount of the penalty was raised should not be bound for more than the original penalty of the bond. Those who signed after the amount of the penalty was raised from two thousand nine hundred and two dollars and sixty-one cents to eight thousand six hundred dollars had a right to presume, in the absence of anything to put them on guard, that the signatures preceding their own were, in fact, made with the knowledge that they each were bound for the raised sum appearing in the bond. Differently stated, the subscribers last signing the bond believed that the signers preceding him would contribute equally the payment of whatever decree the appellate court might thereafter render against their principal, to the amonut of the penalty of the bond signed by him.
Now, we believe that the last signer should be held to the same liability that his co-obligors are required to pay. We also believe that, under our statute, the judgment or decree should not be for the full amount for which a bond of this character might have been required in the state of case in which it was given; but the liability of the sureties should be limited to the amount which they expressly obligated themselves to
Our interpretation of the statute being, as before stated, that, inasmuch as the supersedeas bond was for a specified amount, the lower court should enter a decree against the appellees for the amount specified in the bond. There was much evidence taken which was irrelevant, but it is clear that all of the sureties signed the bond for the purpose of superseding the decree, and that the bond accomplished this result.
Reversed and remanded for decree in accordance with this opinion.
Reversed and remanded.