Forbes & Beck v. Navra

Cooper, C. J., delivered the opinion of the court. The bonds executed by the claimant, Navra, and by the defendant are not invalid by reason of the fact that they were accepted by Beck, the sheriff, who was a member of the firm by whom the attachment was sued out. It is true, as has been decided in Dyson v. Baker, 54 Miss. 351, that a sheriff cannot execute process in. his own case, but that was not done in this case. The writ had been properly executed by the constable, and the property attached was in custodia legis by virtue of his action with the writ. The defendant and the claimant sought and obtained a surrender of the property, which was then in the hands of the officer who was one of the parties to the suit, and as a condition to obtaining such surrender executed the bonds which appear in the record. These bonds performed the office of transferring the possession of the [8] property attached, from the officer to the claimant and to the defendant, and this being the case, the parties thereto must comply with their conditions. Code of 1880, § 2305. We are of opinion that the bond executed by the defendant was one to discharge the attachment as to the eighty-two tiers of timber then remaining in the hands of the officer. The condition is appropriate to a bond of that character, and though it might be possible to uphold it as a forthcoming bond for the redelivery of the eighty-two tiers of timber, we are of opinion that it was intended to' be executed and received under § 2428 of the code as a discharge pro tanto of the attachment releasing the property then in the hands of the sheriff. In McKinney v. Green, 52 Miss. 70, it is said by the court that a plaintiff who fails to obtain judgment against both principal and surety, may correct the error by appeal from the judgment entered against the defendant alone, but we do not understand that it was intended to thereby indicate that no other appropriate remedy existed. Upon the verdict of the jury in favor of the plaintiff against the defendant, on the trial of the issue in chief, the plaintiff was entitled, as a matter of right, to a judgment on the bond of the defendant. Under such circumstances, it must be presumed that the court directed the proper judgment to be entered, and that the failure so to do was occasioned by the negligent omission of the clerk in the performance of a mere clerical duty. Freeman on Judgments, § 70, and authorities there cited. In such cases the judgment may be amended after the lapse of the term at which it was rendered, so as to make it conform to that directed to be entered by the court. Cotton v. McGehee, 54 Miss. 622; Freeman on Judgments, § 71. But notice should be given to the opposite party of the application. Cotton v. McGehee, supra. It does not appear by the record that Hardy, the surety, had notice of the application to take judgment against him on the bond, and for that reason the court properly vacated the one which had been rendered against him, but having appeared and moved to discharge it he again submitted himself to the jurisdiction of the court, and it should have rendered the proper judgment against [9] him in discharging the one which had been previously taken. And this court, now proceeding to enter such judgment as should have been entered in the court below on the bond of the defendant, directs that a judgment be entered here amending and correcting the original judgment entered in said cause, so that judgment shall go against the bond executed by the defendant and I. Hardy, surety thereon, for the penalty of said bond, to be discharged upon the payment and satisfaction of the judgment in chief. The judgment of the court made upon the motion of the claimant, Navra, quashing the return of the sheriff and the bond of the claimant, is reversed and cause remanded for a trial of the claimant’s issue.'