Flanagan v. King-Peeples Auto Co.

• Decision Date: 15 January 1923
• Docket Number: 22886
• Citation: 94 So. 841,132 Miss. 95
• Court: Mississippi Supreme Court
• Parties: FLANAGAN v. KING-PEEPLES AUTO CO. et al

94 So. 841

132 Miss. 95

FLANAGAN v. KING-PEEPLES AUTO CO. et al

No. 22886

Supreme Court of Mississippi

January 15, 1923

APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS Chancellor.

Suit by W. E. Flanagan against the King-Peeples Auto Company and others. From an order dismissing the bill, plaintiff appeals. Affirmed.

ON SUGGESTION OF ERROR.

OPINION

ANDERSON, J.

This is an appeal from a decree of the chancery court of Sunflower county dissolving an injunction issued against the enforcement of a judgment at law, and dismissing the bill upon which said injunction was issued. The bill was brought by appellant, W. E. Flangan, one of the defendants in the judgment sought to be enjoined, against the appellees King-Peples Auto Company, a partnership, the plaintiffs in said judgment, and A.C. Cox, the sheriff of Sunflower county who was attempting to enforce said judgment by levy of execution issued thereon upon the lands of appellant. This judgment was rendered by the circuit court of Tallahatchie county in favor of appellees King-Peeples Auto Company against one C.F. Evan, the defendant in said cause, and appellant and one L.B. Bright, his sureties on a bond given by him during the progress of said cause. The validity of the judgment in question, so far as appellant is concerned depends on the purpose and effect of that bond, and, in order to determine this, a consideration of the history of the cause in which it was given is necessary.

The suit in which said bond was given was a suit by appellees King-Peeples Auto Company against said Evans under sections 3079 and 3081, inclusive, Code of 1906 (sections 2436 to 2438, inclusive, Hemingway's Code), purchase-money lien statute, to enforce payment of the purchase money of an automobile theretofore sold by them to said Evans. A writ of seizure was issued as provided by the statute and levied on the automobile in question. Thereupon the defendant Evans executed a bond in the form of a bond to discharge an attachment as provided for by section 158, Code of 1906 (section 150, Hemingway's Code), which was accepted and approved by the officer levying said writ, who by virtue of the execution of said bond delivered said automobile back to said Evans. This bond was made payable to appellees King-Peeples Auto Company, is in a penalty double the amount of the indebtedness involved in said suit, and it conditioned to pay whatever the defendant therein, Evans. Said cause was tried, resulting in a verdict and judgment against said Evans and appellant and amount of the purchase money found to be due on said automobile; and the judgment also condemned the automobile to be sold for its payment. Soon after the judgment was rendered the automobile was turned over to the sheriff , who sold it and applied the proceeds thereof to the judgment which left he issued for the balance of the judgment which left the larger part of it unpaid. Execution was then issued for the balance of the judgment and levied by the appellee Cox, as sheriff, on the lands of appellant, who brought the bill in this cause to enjoin the further enforcement of said judgment as to appellant, on the ground that the condition of said bond had been discharged by the return of said automobile to the sheriff and its sale and application of the proceeds as above stated, and for that reason the court was without authority to render any judgment against appellant as surety on said bond, and therefore said judgment so far as it concerned appellant was void. So the question is whether the bond which was given was authorized by law. Appellant contends that the only bond authorized was a forthcoming bond under section 151, Code of 1906 (section 143, Hemingway's Code), which he alleged in his bill was intended to be given. While appellees contend that a bond either under said section or under section 158, Code of 1906 (section 150, Hemingway's Code), was authorized by law, and a bond having been executed as provided by the latter section, the principal and sureties are bound by its terms. The solution of the question depends upon the interpretation of the following language of the purchase-money lien statute (the latter part of section 3080, Code of 1906; section 2473, Hemingway's Code):

"Whereupon the clerk of the court, or justice of the peace in cases before him, shall issue a writ of summons and seizure, commanding the officer to seize the property and deal with it as in the case of an attachment for debt, and to summon the defendant as in other cases. The defendant may replevy the property as in case of attachment against debtors."

It will be noticed that the statute provides that the officer seizing the property shall deal with it "as in the case of an attachment for debt." In discussing the purpose and meaning of this clause of the statute in Quillan v. Paine, 94 Miss. 696, 47 So. 898, the court said:

"Section 3080 of the Code of 1906 provides that, where a suit is brought by the seller of personal property to subject same to the debt for the purchase money thereof, the property shall be...