Spratley v. Kitchens

Chalmers, J., delivered the opinion of the court. One of the replevin writs issued by the justice of the peace had no seal or scroll upon it. Section 1310 of the Code of 1871 provides that “ all civil process issued by a justice of the peace shall be under his hand and seal.” Motion was made in the Circuit Court to quash the writ because of the absence of a seal. The motion was properly denied. Section 712 of the Code provides that ‘ ‘ if any matter required to be inserted in, or indorsed upon, any process shall be omitted, such process shall not on that account be held void, but may be set aside as irregular, or amended on such terms as the court may think proper ; and such amendment may be made upon any application to set aside or quash the writ.” This provision clearly makes the defect of want of a seal amendable on motion to [581] quash; and it has been several times decided by this court that a motion to quash a writ for a defect which is amendable dispenses with the necessity to amend, upon the ground that the writ having served its purpose by bringing the parties or property before the court, and the defect being one Avhich the statute regards as merely clerical, and therefore makes amendable, the process shall not be held void, even though the amendment does not take place. McClanahan v. Brack, 46 Miss. 246; Dandridge v. Stevens, 12 Smed. & M. 724; Harrison v. Agricultural Bank, 2 Smed. & M. 307. There were two suits pending between the parties, both actions of replevin for the recovery of cattle. The plaintiff and defendant Avere the same in each suit, but the cattle in controversy were different, and a separate forthcoming bond, Avith different sureties, had been executed by the defendant in each case. Upon the trial the two cases Avere, by order of the Circuit Court, consolidated and tried together, and one verdict and judgment rendered. This was erroneous and fatal, because of the different sureties on the bonds. The effect of the judgment rendered was to make each surety on each bond liable for all the cattle in controversj^ in both suits, though by the terms of the obligation which he had signed he had bound himself only for the forthcoming of those seized in the particular suit in Avhich he had become suret}. Suits can be consolidated at law only Avhere all the parties are the same on both sides, and a single judgment can settle the rights of all. The sureties on a replevin bond are, by operation of Iuav, parties to the litigation from the date of its execution, and receive judgment eo instanti Avith their principals. The sureties on the bonds in the tivo cases in this instance not being the same, the parties Avei-e not the same, and the consolidation Avas improper. The jury failed to find the separate value of the different cattle. This was erroneous, but if it was the onty error, ivould only necessitate the reversal of the judgment, and the remanding of the case for the ascertainment of the value of the cattle [582] separately, by writ of inquiry, leaving the verdict undisturbed in other respects. On account of the error in the consolidation of the suits the judgment is reversed, cause remanded, and new trial awarded, to be conducted separately in each case.