Stockstill v. Campbell

111 So. 93 | Miss. | 1927

^* Corpus Juris-Cyc. References: Executions, 23CJ, p. 581, n. 56 New. This suit was brought to recover against the sureties on an injunction bond executed by appellees, enjoining an execution upon a decree in favor of the appellant. The injunction had been dissolved, and judgment rendered against the sureties, the appellees, upon the bond, but the decree authorized the issuance of execution under the former decree rendered in 1914, which decree had become barred by the seven-year limitation.

The lower court sustained a demurrer filed by appellees herein, which was, in effect, a holding by the court that no recovery could be had against the appellees upon the injunction bond, because the execution was ordered issued under a prior barred judgment.

We think the decision of the lower court was error. The judgment against the injunction bond, upon the dissolution of the injunction, was valid, under our statutes, and execution could have been issued thereunder, regardless of the alleged error of the clerk in ordering execution under a prior barred judgment.

The case is controlled by section 622 and 623, Code of 1906, and sections 382 and 383, Hemingway's Code, and by the case ofCourtney Bros. v. John Deere Plow Co., 122 Miss. 232, 84 So. 185.

The decree of the lower court is reversed, and the cause remanded for further proceedings.

Reversed and remanded.