McKee v. Pope

Judge Duvall delivered the opinion of the court. The petition in this case sets out three separate and distinct causes of action: 1. That the defendant, Pope, was indebted to McKee in the sum of $500, by note dated the 1st day of January, 1853, payable twelve months thereafter. [554] 2. That the note was given for the price of a negro woman which McKee had sold to Pope, and that on the 12th January, 1853, the latter had executed to him a mortgage on her to secure the payment of the note. 3. That Pope had subsequently executed amortgage upon the same slave, and upon some other property, to Burdett and Kinnaird, to secure certain liabilities they had incurred for him; that the slave was not worth more than McKee’s debt and interest, and would not sell for more than enough to satisfy the same; that Pope is insolvent, and unless plaintiff could receive the hire of the negro, (worth about $30, or $35 a year,) a portion of his debt will be lost; that no part of his debt has been paid, and that he is entitled to the immediate possession of the slave. He therefore prays judgment for his debt, judgment for foreclosure of the mortgage, and a sale of the slave to satisfy the same, and also for an order to deliver to him the immediate possession of the slave. McKee having filed the appropriate affidavit, sued out an order for the delivery of the slave, and thereupon the defendants, Pope, Burdett, and Kinnaird, together with Letcher as their surety, executed a covenant by which they “undertake and are bound to the c plaintiff, Geo. R. McKee, in the sum of eleven hun- ‘ dred and thirty dollars, that the defendants Thomas ‘ W. Pope, Joshua Burdett, and William H. Kinnaird, ‘ shall perform the judgment of the court in this ace tion.” The defendants having failed to answer, the petition, it was taken for confessed against them, and a judgment was rendered, first, against Pope alone for the amount of the note, with interest from its maturity till paid, and costs; secondly, that Pope’s equity of redemption in the slave he foreclosed, and that she be sold by the commissioner, on the terms prescribed, the proceeds of the sale to be applied to the satisfaction of McKee’s debt. 1. Where there is a misjoinder of causes of action in a proceeding under secs. Ill to 114 of the Code of Practice, unless exception be taken for that cause in the circuit court, th» court of appeals will regard the irregularity as , waived. The slave was sold under this judgment, McKee becoming the purchaser at the-price of $400, leaving a balance still due upon his judgment on the note. Execution against Pope having been returned “no property found,” áse., a rule afterwards issued at the instance of McKee, against all the obligors in the bond, requiring them to show cause why judgment thereon should not be entered against them. To this rule the defendants (except Pop.e,) responded, insisting that they had caused the slave to be delivered to the commissioners in pursuance of the judgment of the court, and were thereby discharged from all further liability upon the bond. On final hearing the court discharged the rule, and from that judgment McKee has appealed to-this court, insisting that, by the plain and unambiguous terms of the bond, the defendants were liable to him for the whole amount of his judgment against Pope, upon the note of the latter, less the amount realized by the sale of the slave under the same judgment. And the only question for us to determine, upon the state of case as presented by the record, is whether the appellees are liable as thus contended for by the appellant, or whether their liability is restricted to such judgment as might have been rendered, in this action, for the delivery of the slave. There was obviously a misjoinder of the several causes of action in the petition, under the rules prescribed by the Civil Code, sections 111 to 114, inclusive. They do not each affect all the parties to the action, cannot be properly prosecuted by the same kind of proceedings, and do not all belong to either one of the classes designated by sub-sections 1 to 7, inclusive. It is true that all objection to the misjoinder must be deemed to have been waived, no exceptions having been taken in the proper mode, or at the proper time, and the misjoinder is referred to here for no other purpose than to explain the cause of much -of the difficulty and confusion in which the case is apparently involved. 2. A petition was brought to recover the am’t of a note and foreclose a mortgage given to securethatnote; an order made by the court to the sheriff to deliver tho mortgaged property (a slave) to the plaintiffs unless bond was given for the delivery, &c. The debtor, with a subsequent mortgagee of the slave, gave bond to the pl’tff‘to perform the judgment of the court in this action;’ upon the rendering of the judgment for the debt and foreclosure of tho mortgage, the obligors surrendered the slave to the commismissionerof the court, and it was soldforless than the debt for which it was mortgaged. Pl’ff took a rule on the obligors to show cause why judgment sho’d not be rendered against them on the bond for the balance of the debt not satisfied by the sale of the slave: Held by the court, that though the literal terms of the bond were broad enough to embrace such claim of pi’tiff, yet it was not authorized by th eCode of Prac. in a case like this,where there was a misjoinder of action. Such bonds are only contemplated by the Code in actions for the recovery of the possession of property, and the liability only extended to such judgment as the court might have rendered on the claim for the immediate possession of the property. [556] That the terms of the covenant sought to be enforced by this proceeding are, according to their literal import, broad enough to comprehend the judgment against Pope for the amount of the note sued on, may be conceded, but the question is, whether such literal construction is at all admissible, under the facts of this case, and would not violate the manifest object intent and meaning of those provisions of the Code under which the bond was executed? Section 207 provides that the plaintiff, in an action to recover the possession of specific personal property, may, at any time before judgment, claim the immediate delivery of it; and the succeeding sections of the chapter prescribe the mode in "which the precedis to be conducted, and the terms upon which the relief may be granted. The plaintiff is required among other things, to make affidavit to certain facts enumerated in section 208, and to execute a bond to the defendants before the order for the delivery of the property shall be complied with by the sheriff. After pointing out the manner in which the order is to be executed it is provided by sec. 215, that the defendant may, in case the property was not taken under a distress warrant or execution, cause a bond to be executed to the plaintiff, in double the value of the property, “to the effect that the defendant shall perform the judgment of the court in the action.” Now, what “action” do these words refer to? Obviously and necessarily to the action provided for and defined in that chapter, and to no other. Such bond is neither required or allowed to be executed in any other class of actions, or in the prosecution of of any other cause of action, and becomes a nullity when given in a case not authorized by law. Suppose this had been merely an ordinary action against Pope, to recover the debt due on the note, and the appellees had executed this bond at the instance of the officer serving the summons, "would it be seriously contended that it would have imposed any liability whatever upon the obligors, for the [557] amount of the judgment recovered in such action? And yet that is precisely.the effect of what the appellant is seeking to uo in this case. He has prosecuted his action, regularly, for the recovery of the possession of the slave; the appellees executed the bond which the law required of them as the only condition upon which they could retain possession, and by which they bound themselves to perform the judgment of the court “in the action.” But the appellant chooses to unite in his petition, contrary to the express provisions of the' law, a distinct and incongruous cause of action—a claim arising upon contract—and because his judgment on the latter claim was a judgment in the action, he insists that it is embraced by the words of the bond, and therefore by the legal obligation arising upon it. We cannot concur in this conclusion. We cannot assume that the legislature intended that a bond which is made appropriate to, and demandadle in, but one single class of cases, should bind the obligors to perform a judgment rendered in a different and dissimilar case, especially when, as we have already seen, the two can never be legally united in the same action. In an action to recover the possession of personal property the judgment, if for the plaintiff, must be for the delivery of the property, if to be had, and if not, for the value thereof, and damages for the detention of the same; and this is the only judgment which the appellees, by the terms of their bond, undertook to perform. If such judgment had been rendered in this case can it be doubted that a delivery of the slave, and payment of the damages for detention by the appellees, would have been a complete discharge of their obligation, whatever might have been the amount recovered against Pope on his note? If not, and if three separate judgments had been rendered according to the prayer of the petition, the appellees, would, on the principles contended for, have been bound for the performance of all of them? [558] But, jn point of fact, there was no judgment either for the return of the slave or for her value, or for damages for her detention. 'Whether the court erred to the prejudice of the appellant, in failing to render such judgment, is an inquiry with which we have nothing to do at present, as this appeal only questions the action of the court in discharging the rule. Our conclusion, therefore is, that the appellees were liable, upon their bond, only for such judgment as might have been rendered by the court on the appellants claim for the immediate possession of the slave, and that its obligatory effect cannot be regarded as having been so enlarged or extended by the misjoinder in the same action, of a claim arising upon contract, as to comprehend the judgment rendered on the latter cquse of action. This conclusion is sustained by the long established and well settled rules of construction, which are too well understood to require repetition here; and by the obvious reason and justice of the case. The judgment is affirmed.