Fly & Hobson v. King

• Decision Date: 18 December 1893
• Citation: 14 So. 465,71 Miss. 537
• Parties: FLY & HOBSON v. T. O. KING, USE, ETC
• Court: Mississippi Supreme Court

14 So. 465

71 Miss. 537

FLY & HOBSON v. T. O. KING, USE, ETC

Supreme Court of Mississippi

December 18, 1893

October 1893

FROM the circuit court of Tunica county, HON. R. W. WILLIAMSON Judge.

Appellants Fly & Hobson, recovered before a justice of the peace a judgment against W. A. Spratlin, and caused execution thereon to be levied upon a county warrant for $ 110.50 owned by him. Thereupon, Spratlin notified the sheriff, in writing, that he claimed the warrant as exempt under § 1249, code 1880 which allows every person, being a householder and having a family, residing in any city, town or village, to hold as exempt, in lieu of the articles specified, personal property to be selected by him, not to exceed in value $ 250. The plaintiffs executed an indemnifying bond, in accordance with § 1245, code 1880, payable to the sheriff, and the latter proceeded to sell the warrant under the execution, and applied the proceeds to the satisfaction in part of the judgment.

This is an action on the said indemnifying bond, brought for the use of W. A. Spratlin, in the name of the coroner of Tunica county, the sheriff having meantime died, and there being no deputy. Before a trial of the cause, T. O. King became sheriff of said county, and, by leave of court, was substituted for the coroner as nominal plaintiff, and the cause proceeded to a trial, which resulted in a judgment for plaintiff for double damages, as provided by § 1246, code 1880. Defendants, Fly & Hobson, the principals in the indemnifying bond, appeal.

Affirmed.

St. John Waddell, Jas. R. Chalmers and Johnston & Johnston, for appellants.

The bond of indemnity was given to the sheriff, and, at his death, the legal title and right to sue passed to his personal representatives, instead of to his successor. The judgment cannot be legally maintained, since the nominal plaintiff has no connection, either legal or equitable, with the obligation sued on. It makes no difference that the action was for the use of the person beneficially interested. The objection is not cut off by the verdict and judgment, or cured by the statute of jeofails. As there was no right of action in the coroner or in King, the sheriff, the judgment must be reversed. See Lake v. Hastings, 24 Miss. 490, citing 10 Smed. & M., 452, 585, and 13 I b., 43; Haynes v. Ezell, 25 Miss. 242; Beck v. Rosser, 68 I b., 72.

The statute of jeofails cannot be extended to make out a new and...