Horne v. Moorehead

• Decision Date: 19 March 1934
• Docket Number: 31013
• Citation: 169 Miss. 362,153 So. 668,152 So. 495
• Court: Mississippi Supreme Court
• Parties: HORNE v. MOOREHEAD et al

152 So. 495

153 So. 668, 169 Miss. 362

HORNE v. MOOREHEAD et al

No. 31013

Supreme Court of Mississippi

March 19, 1934

Division B

February 5, 1934

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Replevin by D. B. Moorehead against Mrs. C. B. Horne. From a judgment quashing execution on motion of Monroe Miles and J. C Hamilton, sureties on plaintiff's bond, Mrs. C. B. Horne appeals. Affirmed.

Suggestion of error overruled March 19, 1934.

Affirmed. Suggestion of error overruled.

Ross R Barnett, of Jackson, for appellant.

By agreement in a replevin suit absolute money judgment may be rendered against defendant and sureties on bond, and sureties' consent to judgment need not affirmatively appear therefrom.

Federal Credit Co. v. Rogers, 148 So. 353; Starling v. Sorrell, 134 Miss. 782, 100 So. 10, 11; Freeman on Judgment (4 Ed.), sec. 116.

It was our thought that the sole and only record to be sent up to this court was, (1) the judgment, and (2) the motion to quash the execution, (3) the execution and (4) the order. All things prior to the judgment were merged into and became a part of the judgment.

23 C. J. 537, sec. 418.

There was no evidence introduced before the circuit court and no testimony given that there was any fraud or mistake in taking the consent judgment.

An attorney, when agreeing to the entry of a judgment against his client, is presumed to be acting with the client's consent, and a judgment entered in accordance with such an agreement is ordinarily conclusive against the client.

Cocke v. Wilson, 134 So. 686; Hurst et al. v. Gulf States Creosoting Co., 141 So. 346; Federal Credit Co. v. Rogers, 148 So. 353; Starling v. Sorrell, 134 Miss. 782, 100 So. 10.

A consent judgment in this case is valid and binding on its face and there is nothing before this court to show otherwise.

Duncan v. McNeil, 31 Miss. 704; Henderson v. Winchester, 31 Miss. 290; Cannon v. Cooper, 39 Miss. 784, 80 Am. Dec. 101.

Voller & Teller, of Vicksburg, for appellees.

That the bond, conditioned according to the statute, both limits and fixes appellees liability as sureties is too rudimentary to necessitate discussion.

Myers et al. v. Daughdrill et al., 141 So. 583, 163 Miss. 298; sec. 3091, Code of 1930; 54 C. J. 647; Menken v. Frank, 57 Miss. 732.

The law is settled that the liability of sureties on any undertaking is strictly construed in favor of the sureties.

51 A. L. R. 1489; 21 R. C. L. 975; Cook v. Waldrop et al., 133 So. 894, 160 Miss. 862.

This being the law, under no theory, in the absence of an expressed consent in the nature of a binding obligation, could the sureties be obligated to pay any damages not directly resulting and emanating from the "wrongful suing out of the said writ."

Lake v. Hargis, 82 Kan. 711, 109 P. 670, 30 L. R. A. (N. S.) 366.

It is the law that no judgment could conceivably be consented to which, without the sureties expressed consent, could bind such sureties, by a consent judgment or otherwise, to incur a liability other or different from that evidenced by their bond.

Lee v. Hastings, 13 Neb. 508, 14 N.W. 476.

The motion to quash was proper procedure.

Jackson v. Redding et al., 138 So. 295, 162 Miss. 323; 23 C. J. 537.

The motion to quash was properly sustained when judgment shown to be in excess of court's power.

23 C. J. 544.

Argued orally by Ross R. Barnett, for appellant.

Ethridge, P. J., Anderson, J., delivered the opinion of the court on suggestion of error.

OPINION

Ethridge, P. J.

This is an action in replevin instituted by D. B. Moorehead upon an affidavit charging that a certain Chevrolet truck had been wrongfully taken from his actual possession within thirty days past and was being wrongfully detained by Mrs. C. B. Horne in the First district of Hinds county, Mississippi; and that said affiant was entitled to the immediate possession thereof and to make the first bond. Plaintiff gave bond in the sum of five hundred dollars with Monroe Miles and J. C. Hamilton as sureties; the truck was taken possession of under said bond, and a plea of not guilty was entered by Mrs. C. B. Horne.

On the return day in the circuit court, a judgment was entered by agreement between D. B. Moorehead and Mrs. C. B. Horne, defendant, that she was entitled to a judgment in the sum of one hundred eighty-three dollars, "including principal, interest and attorney's fees," against D. B. Moorehead, and reciting that the defendant (Mrs. Horne) was entitled to a lien on said truck, and adjudging that said truck be sold for the purpose of paying said judgment, and all costs of the suit, including sale of said truck. The truck was sold and purchased by Mrs. C. B. Horne for nineteen dollars and twenty-five cents, amount of costs of the suit.

Execution was thereupon issued against Monroe Miles and J. C. Hamilton, and returned with the notation that no property was found subject to execution. Pending the return of this execution, Hamilton and Miles moved to quash same on a number of grounds, among others being that the judgment entered was void and without their consent, and that a judgment could not be entered without their consent; that such judgment rendered was not for the value of the property, but was for the amount of the debt, interest, and attorney's fees; and that such judgment was not authorized by their bond or by the statute. The court sustained the motion to quash, and from this judgment, this appeal is prosecuted, and D. B. Moorehead is not a party to this appeal.

The bond given by Monroe Miles and J. C. Hamilton contains the following language: "Be in full force and effect, unless the said D. B. Moorehead, the principal and plaintiff, shall prosecute to effect his writ of replevin against Mrs. C. D. Horne, the defendant, for one (describing it) truck . . . now delivered to the said plaintiff, upon the execution of this bond; and shall without delay return said property to the said Mrs. Horne, the defendant, if return thereof be adjudged, and shall pay to the said Mrs. C. B. Horne such damages as she may sustain by the wrongful suing out of the said writ and such costs, as may be awarded against him, and save harmless the officer who replevied said property."

Section 3091, Code 1930, provides the form of plaintiff's replevin bond, reading: "Unless the said --, the principal and plaintiff, shall prosecute to effect his writ of replevin against --, the defendant, for certain property (here describe the property and give the value of each article separately), and now delivered to the said plaintiff upon the execution of this bond; and shall, without delay, return said property to the said --, the defendant, if return thereof be adjudged, and shall pay to the said -- -- such damages as he may sustain by the wrongful suing out of the said writ, and such costs as may be awarded against him, and save harmless the officer who replevied said property."

It will be seen from the quotation from the bond executed in the case at bar, and...