Hannis Distilling Co. v. Lanning

• Citation: 191 Ala. 280,68 So. 137
• Decision Date: 04 February 1915
• Docket Number: 902
• Parties: HANNIS DISTILLING CO. v. LANNING et al.
• Court: Supreme Court of Alabama

68 So. 137

191 Ala. 280

HANNIS DISTILLING CO. v. LANNING et al.

No. 902

Supreme Court of Alabama

February 4, 1915

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by W.O. Lanning and others against the Hannis Distilling Company. From a decree for complainants, defendant appeals. Reversed and rendered.

Sterling A. Wood, of Birmingham, for appellant.

Thomas J. Judge, of Birmingham, for appellees.

SAYRE J.

Complainants (appellees), on request of J.D. Evans, who had been sued signed a bond for the dissolution of a garnishment and the discharge of garnishees who had been brought in, according to the provisions of section 4313 of the Code. This bond was approved by the clerk of the court in which the proceeding was pending, although it was not signed by Evans, and the garnishees were accordingly discharged. Afterwards judgment was rendered against Evans and complainants in this bill this in pursuance, as doubtless the court intended, of the following provision of the above section:

"And upon the trial of the cause, if judgment is rendered or ascertained to exist in favor of the plaintiff against the defendant, the court must also render judgment against the obligors in the bond for the amount of such judgment, interest thereon, and costs of suit."

Execution having been issued and levied upon the property of some of the sureties, they filed the bill in this cause against the plaintiff in execution and the sheriff, praying that they be perpetually on joined and restrained from proceeding against these complainants under the judgment rendered by the law court.

Complainants base the equity of their bill upon two propositions: (1) The bond for the dissolution of the garnishment was not the bond contemplated by the statute, because it was not signed by the defendant in the action at law, and hence that the summary judgment against them was void; (2) their signatures were procured on the representation that the defendant, for whom they intended to become sureties only, and another, would sign the bond, which he failed to do.

If the bond, though lacking the signature of the defendant, could be lawfully accepted and acted upon by the court as a bond within the meaning and for the purpose of the statute, the second ground upon which the equity of the bill is placed must fail, for the reason that a surety on a bond or undertaking, executed in the commencement or progress of any suit or judicial proceeding, civil or criminal, cannot avoid liability thereon, on the ground that he signed or delivered it on condition that it should not be delivered to the proper officer, or should not become perfect, unless it was executed by some other person who does not execute it. Such is the provision of section 1505 of the Code, and it must be read into every bond that may be lawfully held to operate under section 4313, supra.

So, then, the question is whether the bond in the case before us was void and of no effect as a bond under section 4313, and whether in consequence the summary judgment against these complainants was altogether ineffectual, for the reason only that the defendant in the law court failed to attach his signature thereto.

In his decree granting relief the chancellor has stated that he sought to follow the decision in Painter v. Mauldin, 119 Ala. 89, 24 So. 769, 72 Am.St.Rep. 902. The rule of that case, as applicable to the official bonds of guardians, has been changed since the decision, so that now, after final decree against the guardian on a settlement with his ward, execution may issue against his sureties, whether their principal has signed the bond or not. Code of 1907, § 4439. It may be noted here that in a case of that sort no judgment can properly be rendered against the guardian's sureties, the statute not so providing; and yet, notwithstanding the settlement is made without notice to them, and they are not technically parties to the decree against the guardian, such decree is, in the absence of fraud, the bond being a subsisting valid obligation at the time of the decree, conclusive on them, because the settlement is an act which their principal is required by law to perform, and the due performance of which is within the condition of his bond. Gravett v. Malone, 54 Ala. 19.

But it remains to institute some inquiry as to the principle of law laid down in Painter v. Mauldin. It was an admitted fact in that case that the guardian himself, the principal, though his name appeared in the body of the bond, never signed the bond. The question there at issue was stated by the court to be whether the sureties were bound, and the court's right to issue execution on the bond, and this question, as the court observed, had bean variously decided by courts of great learning in other jurisdictions. The decision announced was that the bond, not having been signed by the guardian...