State v. Powers

52 Miss. 198 | Miss. | 1876

Campbell, J.,

delivered the opinion of the court.

This is an action on the bond of Moore, sheriff of Lincoln county, against the sureties on it. The plea is nil debet. On trial plaintiff dismissed his action as to all but two of the defendants. The bond, when offered in evidence, was objected to and excluded, and judgment declared for defendants by the judge, who tried the case without a jury, by consent of parties. Afterwards, and before the judgment was entered on the minutes, plaintiff moved to set aside the judgment, with a view to dismiss as to one of the defendants, and to amend the declaration, but this was refused. The exclusion of the bond as evidence, and the refusal, after judgment declared, to set it aside for the purpose stated, are assigned for error, having been excepted to at the time.

The record does not disclose the ground on which'the bond was excluded as evidence, but it is obvious from an inspection of the declaration and bond. The bond is in the penalty of §10,000, but each surety bound himself “severally, for the ■sum, and the sum alone, set respectively" opposite their names.” There were four sureties, viz., “ E. W. Millsaps, for $2,000 ; James A. Haskins, for $2,000 ; Eidgley C. Powers, for $3,000 ; Henry O’Hara, for $3,000,” who signed the bond, as here represented. The action was against the four sureties, for the penalty of $10,000, with a statement in the declaration of the way in which the sureties bound themselves severally for the amount set opposite the name of each. The suit was dismissed as to all except Millsaps and Haskins, and the bond was offered as evidence. It was properly excluded, because the action is against Millsaps and Haskins jointly, whereas their obligation is clearly a several one, and is not joint and ■several. The bond is not good as a statutory bond, for want •of conformity to the statute, but it is a good common law obligation, and enforceable, according to its tenor, by the appropriate action. Each signer is bound severally for the sum set opposite to his name. A joint action on the bond cannot be maintained, but each surety may be sued separately for the sum set opposite to his name, and recovery had, upon proper proof, for said sum, to be discharged upon payment of the damages assessed. The bond should be treated as the bond of each surety, in a penalty equal to the amount set opposite to his name, and recovery had accordingly, if plaintiff shows himself entitled to recover. The bond was in blank as to the date of its execution. The declaration supplied this by averment, and the bond could not properly have been excluded on this ground. Being in blank, it was competent to show the time of its delivery, from which date it took effect. If plaintiff, during the trial, had proposed to dismiss his action as to Millsaps or Haskins, and to conform his declaration to the proof, it would have been error in the court to refuse to allow it. Code, §§ 621, 623. But it appears from the bill of exceptions that, upon the exclusion of the bond, “ the defendants had judgment.” Afterwards, but before the judgment was entered on tbe minutes, the motion was made to set aside tbe judgment, with a view to dismiss, etc. If the case had been submitted to a jury it would have been too late, after the verdict, to amend as proposed, and we think the finding by the judge may in this respect be likened to a verdict. At all events, whether the judge might properly have entertained and granted the motion or not, under the circumstances we do not consider it proper to disturb his action upon it.

The judgment is affirmed.