Atkinson v. Foxworth

Simrall, C. J., delivered the opinion of the court. It is proper to state in limine that this writ of error is prosecuted by the Messrs. Atkinson, the sureties on the claimant’s bond, and that they cannot assign error in the suit between the attachment creditor and his debtors. Although errors and irregularities might abound in those proceedings which would compel a reversal of the judgment on writ of error by the defendant in attachment, yet in the collateral suit between the claimant and the attachment creditor, he is bound by the judgment in the principal suit, unless that judgment be void. We do not think the objection taken to the attachment bond is fatal to the judgment. The bond is not a nullity. Was it error to overrule the motion of the sureties to be discharged, because the claimant’s issue had not been made up'? This error the circuit judge declined to consider, because, as stated in the order overruling the motion, the sureties on the claimant’s bond were not parties to that suit. The statutory proceeding, where personal property has been seized under attachment or execution, is a suit; as much so as where the claim to property is preferred by replevin. The immediate parties are the creditor and the claimant, but the sureties on the bond are so far parties as that they submit themselves to the jurisdiction of the court for all the purposes of judgment on their obligation. The condition is, “ for the payment to the creditor of all such damages as may be awarded [748] against the claimant, in case his claim shall not be sustained, . . . and that he will well and truly deliver the same property to the sheriff or other officer, if the claim thereto shall be determined against the claimant.” If the verdict shall be for the plaintiff on issue joined, or on inquiry by default, the judgment shall be jointly against the claimant and his sureties. Code, § 862. The point at which the sureties become interested is when the court is about to adjudge against them on the bond. We held at this term, in Jones v. Coker, ante, 195, that the sureties in the appeal bond from the judgment of the justice of the peace to the Circuit Court must interpose their discharge in bankruptcy, acquired after the execution of the bond, in the Circuit Court; and if they did not, they could not be relieved from the judgment in chancery. The conclusion was placed on the ground that the sureties were so far parties as that “ they might be heard in their own protection ” in the Circuit Court. Manifestly, if the sureties could not set up their discharge in the Circuit Court, their right would have been clear in a court of equity. The principle is, that the sureties in that class of bonds, where the obligors subject themselves to the authority of a court to render judgment against them, are parties, not in the sense of participating in the litigation between the creditor and the claimant on their issue, but to show any reason, good in law, why their bond should not be declared forfeited. The sureties claim the benefit of § 860 of the Code. If the issue be'not made up at the term to which the execution shall be returnable, the court shall discharge the claimant from his bond. Sect. 1456 of the attachment law directs all claimants’ issues to conform to the statute in such cases provided, when the property has been seized under fi. fa. The “ claim ” in all respects is governed by that law. The history of this feature of the case is this: In the fall of 1869 the levy was made ; the property was claimed by several parties, who, with sureties, gave but one bond. No issue was tendered by the attaching creditor whilst this bond was operative. At the April Term, 1871, Mary Magee, the claimant, [749] moved to be discharged from her bond, because no issue had been tendered or made up. That motion was overruled; and, at the same term, the claimant was required to give a new bond, which was done, with the Messrs. Atkinson as sureties. The court also directed that an issue should be made up at that term. The case was continued from term to term, until 1875. One mistrial having occurred on the plea in abatement to the attachment, that plea was abandoned; when, finally, the claimant’s personal representative (she having in the mean time died) withdrew her claim ; thereupon the sureties appealed to the court by motion to discharge them, because no issue had been made up. These sureties incurred liability for their principal after the claimant’s motion, in April, 1871, had been denied. If there had been an omission, from that time until the sureties submitted their motion to make up the issue, can they complain, or are they bound by the action or non-action of their principal ? If the claimant had joined issue with the creditor at any term after April, 1871, that would have been a waiver of his right to a discharge from his bond. If he had gone to trial on such issue and lost, he could not escape judgment, because the issue was not tendered in time. What he would not be permitted to do, his sureties cannot. They are sponsors for him; and when his liability on the bond is fixed, so is theirs. They undertake that he shall perform his contract. The consideration inures to the principal, and not to them. If the principal waives a right, or by his acts or declarations puts himself under an estoppel, they are bound by his conduct. Montgomery v. Dillingham, 3 S. & M. 647; Dillingham v. Jenkins, 7 S. & M. 479. If the principal does not claim a discharge from the bond, for a failure of the creditor to tender issue, or if the writ of inquiry is awarded for not accepting issue, the surety must abide the same consequences that he incurs. In the one case, a right is waived ; in the other, the claim is abandoned. It is certainly in the power of a claimant to withdraw his claim, and decline, in the language of the bond, “ to prosecute it with effect,” just as the creditor could dismiss his attachment or discharge the levy. That is what was done in this case. Then occurred the condition upon which judgment [750] should go against the obligors, for return of the property or its value. We think there was no error in overruling that motion. But the application by the sureties to show that it was impossible to return the property, because the animals, or some of them, had died, ought to have been entertained; that is, if the death was without the fault or negligence of the claimant. The attaching creditor might defeat that defence by showing that the obligors, or some of them, had disposed of the animals, and thereby become unable to redeliver them. The principal duty of the obligors was to redeliver the property to the sheriff. If that became impossible, it was a discharge from the obligation, by reason of matter occurring after it was given; and it was preferred at the first opportunity, when the sureties could have been heard. Whitfield v. Whitfield, 44 Miss. 253 ; Trotter v. White, 26 Miss. 93. Nor do we think that it was necessary, in this statutory mode of procedure, to have presented the matter by formal plea^ms darrein continuance. It was entirely competent for the court to have directed a formal inquiry by a jury. If that was not insisted upon, it might have heard testimony on the motion. The judgment will be reversed, and cause remanded for a writ of inquiry to be awarded to assess the separate value of each animal. But before judgment on the verdict, the plaintiffs in error should have an opportunity to show that they cannot return the animals, because of their death, or the death of some of them, unless before their alleged death the claimant or the plaintiffs in error had disposed of the property, or some part of it, so that it could not be returned. We do not think that the fraud alleged in the motion, in the conduct of the suit, is a fit subject for investigation in that informal manner. Judgment reversed.