Dudley v. Waltman

• Decision Date: 03 February 1930
• Docket Number: 28293
• Citation: 126 So. 1,156 Miss. 483
• Court: Mississippi Supreme Court
• Parties: DUDLEY et al. v. WALTMAN

126 So. 1

156 Miss. 483

DUDLEY et al. v. WALTMAN

No. 28293

Supreme Court of Mississippi

February 3, 1930

Division B

Suggestion of Error Overruled, Mar. 3, 1930.

APPEAL from circuit court of Scott county HON. EARL RICHARDSON Judge.

Action by E. G. Waltman against C. P. Metcalf and wife. Judgment for plaintiff in the justice court was affirmed in the circuit court, and Colbert Dudley and another, sureties on named defendant's appeal bond, appeal. Affirmed.

Judgment affirmed.

Colbert Dudley, of Forest, for appellants.

Section 2607, Hemingway's Code 1927, provides: If the plaintiff prove his debt, but fail to establish his lien on the property, he shall have judgment only for the debt, and shall pay all costs incident to the seizure of the property.

Wright v. Simmons & Harper, 1 S. & M. 389; Harper et al. v. Barnett, 16 So. 533; Leathers v. Howe & Co., 66 So. 280, 108 Miss. 1; Laurel Mills v. Ward, 102 So. 263, 137 Miss. 221.

Under section 2589 of Hemingway's Code 1927, if there be no lien upon the property, the plaintiff would have no right to a general judgment in this form of action.

Hursey v. Hassam & Pooley, 45 Miss. 133-2.

Judgment could not be rendered against the principal or his sureties on the appeal bond under the proceedings under section 2580, Code 1927.

Percy M. Lee, of Forest, for appellee.

By section 66, Hemingway's Code, it is provided in this section that any judgment against an appellant shall be rendered against the principal and his sureties in the justice of the peace court jointly. The circuit court only entered such judgment as could be by reason of the judgment which had been rendered.

OPINION

Ethridge, P. J.

E. G. Waltman filed a suit in a justice of the peace court against C. P. Metcalf and Mrs. C. P. Metcalf for one hundred fifteen dollars and ninety-five cents, claimed to be due for work done upon a sawmill outfit and trucks used in connection therewith. The petition prayed for judgment and a lien upon the property described to satisfy the same. There was a judgment in the justice of the peace court in favor of Waltman which adjudged one hundred fifteen dollars and ninety-five cents, to be due, and declared a mechanic's lien upon the property described, and directed that it be sold to satisfy the judgment. From this judgment C. P. Metcalf filed an appeal to the circuit court with Dudley and another as surety on the appeal bond; Mrs. Metcalf did not join in the appeal. In the circuit court there was judgment for Waltman, also, being a simple judgment against Metcalf and the sureties on his bond, but not condemning the property to be sold to pay the debt.

Section 2604, Code of 1927, section 3075, Code of 1906, provides among other things, that if the claim of mechanics and materialmen is not paid within thirty days the claimant may commence a suit in any court of competent jurisdiction, and shall be entitled to judgment against the party for whom such labor was done or material furnished, with costs, as in other cases, and to a special order for the sale of the property retained in his possession for the payment thereof, with costs, and to an execution, as in other cases. If the mechanic parts with possession, he shall retain his lien as is provided in cases of lien for...