United States Fidelity & Guaranty Co. v. Jackson

86 So. 456 | Miss. | 1920

Eti-iridge, J.,

delivered the opinion of the court.

The appellees brought a suit in replevin against the Rust Land & Lumber Company for certain logs alleged to have been, wrongfully seized by the said lumber company. The lumber company gave a forthcoming bond, and the cause came on for trial, and there was a judgment in favor of the appellees in the circuit court for the -return of the logs, or, in the alternative, for the value thereof; the judgment reciting that the appellant in the present case was surety on the forthcoming bond in that case. From this judgment so rendered in the circuit court the Rust Land & Lumber Company took an appeal with supersedeas to the supreme court of this state. There ivas no summons issued by the appellant to the United States Fidelity & Guaranty Company, the surety, a joint judgment defendant, under section 43, Code 1906, to appear and join in the appeal, nor was any summons issued by Jackson and the other appellees to said defendant to join in appeal in this suit. The appeal ivas heard and the judgment of the lower court was affirmed. Thereupon the Rust Land & Lumber Company applied to a Justice of the United States Supreme Court for a writ of error with the supersedeas. On motion in that court the writ of error was dismissed, and thereafter a petition for a rehearing was applied for and the-rehearing denied on the ground that the cause was only -reviewable by certiorari. The mandate from the supreme court of the United States was received and filed in this court on July 24, 1919, and on the 26th of July, 1919, the Rust Land & Lumber Company paid the cost in this court, and on the 28th of July, 1919, it paid the judgment and cost in the circuit court of Coahoma county.

While the cause was pending, the appellees in the present suit served notice on the appellant in this suit that they held said judgment and that the present appellant had not appealed from that judgment and that they had a right to issue execution and collect the same and threatened so to do, unless the same was paid. The United States Fidelity & Guaranty Company took the matter up with the Rust Land & Lumber Company, offering to pay the judgment if that company would agree thereto; but the lumber company refused so to agree, and the injunction in the .present case was sued out. ■ The injunction was served on January 25., 1918> and, on the motions of the defendants, in the present suit the appellees, the cause was continued on the 28th day of May, 1918.

The defendants filed an answer on. the 11th day of July, 1919, and a motion made to dissolve the injunction was filed on July 12, 1919. And on the 28th day of January, 1920, decree was rendered by the chancery court in the present suit in which it was adjudged that the injunction was rightfully sued out but was not paid until after answer filed and motion made to dissolve and assess damages, and that, by reason of said fact so adjudged, the defendants were entitled to statutory damages and were assessed damages in the sum of two hundred forty dollars, and seventy-five cents and cost. From which this appeal is prosecutedv

Section 48, Code of ¡1906, section 19, Hemingway’s Code, reads as follows: “Any one or more of the parties to a judgment or decree may appeal therefrom; and if all the parties to a judgment or,decree do not join in the appeal, the clerk of the court from which the appeal is taken shall issue a summons, when the appeal is taken, to such as. do not join in the appeal to appear before the supreme court, at the return term of the appeal, and unite in the appeal; and if they fail to obey tire summons, they shall not afterward have the right of appeal, and the judgment or decree of the court below shall remain in full force against them. If any of the parties not joining in the appeal be nonresidents of this state, the clerk before whom the appeal is taken, or the supreme court, being satisfied thereof., may cause notice of such appeal to be published for three weeks in some public newspaper, citing such nonresident party to appear before said court and join in said appeal; and on proof of publication, the court may proceed as if said party had been served with a summons to join in such appeal. The summons to join in appeal may be issued by the clerk of the supreme court at any time after the transcript shall be received by him, if applied to for it. Afi order of the supreme court for such summons shall not be necessary, and publication may be made for any nonresident by said clerk in the same manner as it may be made by the clerk below or by order of the supreme court.”

This section has* been construed in two recent cases. Tardy v. Rosenstock, 118 Miss. 720, 80 So. 1, and Jayne v. Nash Lumber Co., 108 Miss., 449, 66 So. 813. In Tardy v. Rosenstock it was held that where a judgment was rendered against several defendants and an appeal taken in. which one of the defendants did not join, and for whom no summons was issued requiring him to join in the appeal or lose his right thereafter to appeal, as required by the above section of the Code, the supreme court instead of affirming judgment would either dismiss the appeal or require the statute to be complied with before considering the case, and further held that, where all parties against whom judgment was rendered did not join in appeal and no summons was issued to those not joining as required by the above section, the appellee in order to speed up hearing-may have such summons issued.

It appears from this decision that it ivas improper for the appellant and appellee to to proceed with the case on appeal here without issuing- the summons to the defendant in appealing.

The parties, however, did proceed without having the United States Fidelity & Guaranty Company summoned as required by this section, and evidently the court’s attention was not directed to, or attracted to, the absence of the defendant in the court here.

In the case of Jayne v. Lumber Co., 108 Miss. 449, 66 So. 813, the court held that where a judgment is rendered against the principal and his sureties on a bond the sureties become parties to the judgment, and on appeal therefrom they cannot again act as sureties on the appeal bond. In the course of the opinion the court said:

“The judgment appealed from is a joint judgment against the appellant and the sureties on his appeal bond, and, bj" executing this bond these parties have simply obtained a supersedeas of the judgment against them, so that, in truth and in fact, all of them were principals and the bond contains no real sureties. It is true that the sureties have not appealed from this judgment, neither are they necessary ‘ parties thereto, hut nevertheless a supersedeas thereby obtained inures as much to their benefit as it does to that of appellant.”-

It is plain from this opinion that this court considered that the supersedeas filed by the principal defendant superseded the judgment during the pendency of such appeal, though t-lie appeal did not avoid the validity of the judgment as to the defendant in appealing. Prior to the enactment of section 43,. Code of 1906, an appeal could not be taken unless all the parties joined in the appeal. The statute prescribes a scheme whereby one defendant in a judgment may appeal without the consent of the other defendants, but to do so he should comply with the statute, and if the summons is not issued as required in the statute the appellee should see that the party is summoned before allowing the appeal to proceed. If the party be summoned and does not appear and join in the appeal, then the appellee or judgment creditor after such notice and failure may proceed on the judgment. It is clear from a consideration of the statute and authorities above cited that the injunction was rightfully sued out.

It will further appear from the statement of facts that with reasonable promptness after the mandate of the supreme court of the United States reached this court the cost and judgment was paid. There was no undue delay in paying the judgment, and the defendant in the injunction suit was deprived of no right because his demand has been fully satisfied. We think it error to allow the damages under the facts shown in this record. Burroughs v. Jones, 79 Miss. 214, 30 So. 605. The judgment will be reversed, and judgment entered here for the appellant.

Reversed, and judgment here.