Cahn v. Wright

• Decision Date: 27 January 1919
• Citation: 119 Miss. 107,80 So. 494
• Court: Mississippi Supreme Court
• Parties: CAHN v. WRIGHT

80 So. 494

119 Miss. 107

CAHN v. WRIGHT

Supreme Court of Mississippi

January 27, 1919

October 1918

Division A

1. FORCIBLE ENTRY AND DETAINEE. Appeal. Bond.

Where a defendant appealed to the circuit court from an unlawful entry and detainer court and gave an appeal bond "conditioned to pay such judgment as the circuit court may render against him," such a bond did not obligate the sureties to pay the cost of plaintiff's appeal to the supreme court from the circuit court's Judgment for defendant, which appeal resulted in the case being reversed and remanded.

2. SAME;

Sureties are liable only in accordance with their undertaking.

HON. J A. TEAT, Special Judge.

APPEAL from the circuit court of LeFlore county, HON. J. A. TEAT Special Judge.

Suit by Mrs. Rose M. Cahn against Samuel Wright, Judgment for defendant in circuit court, on appeal from unlawful entry and detainer court, reversed and remanded by supreme court. On motion to retax cost.

The facts are fully stated in the opinion of the court.

Overruled.

Gwin & Mounger, for appellant.

This was a suit for unlawful entry and detainer, begun in the court of W. H. Cooley, a justice of the peace of LeFlore county, by the appellant, Mrs. Rose M. Cahn. In the justice of the peace court, the judgment was for the plaintiff, and the defendant, appellee, appealed to the circuit court of the county, giving the bond with supersedeas, with Alfred Stoner, A. M. Stoner, since deceased, and W. M. Whittington as sureties.

The trial in the circuit court resulted in a judgment for the defendant and the appellee appealed to this court. The case was decided by the court on a former day and was reversed and remanded. Thereafter the clerk taxed the costs, but taxed the same against appellee, Samuel Wright, alone, and the execution therefor having been returned nulla bona, the clerk has since retained the mandate, acting, presumably, under rule No. 29 of the court.

Of course, the costs should be taxed against the appellee and the sureties on his appeal bond in the lower court above mentioned. This is too well settled to need argument. The motion, we insist, should be granted.

CAMPBELL, C. J:

"The surety for costs is liable for costs accrued in the case in this court, to which the defendants below were compelled to resort to free themselves from the erroneous decree against them, which the complainant was enabled to obtain by means of security for costs, but for which this case would have been dismissed. There is nothing in the statute, or the obligation assumed by the surety, limiting his liability to the costs of the court in which the suit was pending when the security for costs was given, and justice requires that he be held liable for all the costs accrued in the case adjudged against his principal. This is the extent of his undertaking. Smith v. Lockwood, 34 Wis. 72; Traver v. Nichols, 7 Wend, 434; Dunn v. Sutliff, 1 Mich. 24." Martin v. Kelly, 59 Miss. 652-65.

Gardner, McBee & Gardner, for appellee.

We call attention to the fact that this is an action of "unlawful detainer and entry," which was begun in the justice court of this county by appellant, against appellee to recover possession of a certain dwelling house in the city of Greenwood. There was judgment in favor of appellant, for the possession of this dwelling house, when appellee prosecuted an appeal to the circuit court and gave the appeal bond required by section 82 of the Code, for an appeal in an action of "Unlawful Entry and Detainer."

By reference to this section, it will be noted that it provides in an appeal from a judgment in an action of unlawful entry and detainer, that the amount of the appeal bond must "be in a penalty double the amount of rent recovered, but never less than two hundred dollars, payable to the opposite party, conditioned for payment of such judgment as the circuit court may render against him, etc."

This section also provides that an appeal shall operate as a supersedeas and further provides "and on the trial in circuit court, the plaintiff may claim for all arrears of rent due at time of such trial, or for the use and occupation of the premises up to that time, and the court shall cause judgment to be entered against the defendant and the sureties on the appeal bond, for the amount found to be due, and award a fieri facias thereon, with legal interest and all costs; but the judgment against the surety shall not exceed the penalty of the appeal bond."

In this connection, we call attention to the appeal bond which was given in the justice court, which was in the sum of two hundred dollars, and which conforms literally to the statute by providing: "Now if the said Samuel Wright shall pay such judgment as the circuit court may render against him, then this obligation is to be void; otherwise, to remain in full force and effect. Witness our hand, this 12th day of March, 1913."

We have quoted from the appeal bond in order that the court may see that it was never the purpose nor intention of the appellee in giving this appeal bond, nor of his sureties in signing it, to provide for any costs that might accrue from an appeal on an adverse judgment in the circuit court to the supreme court. This bond was given, and intended, as the statute required, to operate as a supersedeas of the judgment in the justice court, and for the purpose of enabling appellant, should he have succeeded in the circuit court, to recover judgment for any rents that might have accrued after this...