Jackson v. Redding

• Decision Date: 07 December 1931
• Docket Number: 29643
• Citation: 162 Miss. 323,138 So. 295
• Court: Mississippi Supreme Court
• Parties: JACKSON v. REDDING et al

138 So. 295

162 Miss. 323

JACKSON v. REDDING et al

No. 29643

Supreme Court of Mississippi

December 7, 1931

Division B

1 EXECUTION.

Validity of judgment cannot be attacked by motion to quash execution unless judgment is void.

2 EXECUTION.

Motion to quash execution cannot be used to perform offices of an appeal.

3 EXECUTION.

Execution which is substantially excessive in amount is subject to timely motion to quash.

4 EXECUTION.

Where judgment against principal was for one thousand eight hundred twenty-nine dollars, whereas judgment against surety was for approximately one thousand two hundred eighty-three dollars, motion by surety company to quash general execution issued against both for full sum of one thousand eight hundred twenty-nine dollars held properly sustained.

ON SUGGESTION OF ERROR.

(Division B. Feb. 1, 1932.)

[139 So. 317. No. 29643.]

1. JUDGMENT. Provision of judgment sustaining motion to quash execution, in effect modifying judgment on which execution was issued, should be treated as surplusage. 2. JUDGMENT. To modify final judgment, proceedings must be had directed to that end under statute or some direct proceeding to correct judgment.

HON. W. H. POTTER, Judge.

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

Action by W. H. Jackson against S. A. Redding and others, to enforce a lien. Defendant gave a forthcoming bond, and judgment was rendered against defendant for certain sum and against surety company for a lesser sum. A general execution was issued against both defendants, and the surety company's motion to quash the execution was sustained, and plaintiff appeals. Affirmed.

On suggestion of error.

Suggestion of error overruled.

For former opinion, see 138 So. 295.

Affirmed.

W. H. Cox, of Jackson, for appellant.

The court below erred in holding that the surety might deliver to appellant the excavator in settlement of its money demand fixed against said surety in the original judgment.

If the defendants have given bond for the property (that is to say as provided by the chapter of attachment against debtors) and the judgment and costs be less than the assessed value thereof (as is the case of the excavator here, then the measure of liability on said bond is that), judgment shall be rendered against the defendant and the sureties on its bond for the debt and costs. Sec. 2607, Hem. Miss. Code, 1927; Flanagan v. King Peoples Auto Co., 132 Miss. 95.

It is not apparent from this record that W. W. Capers, claimant, was a proper party to, or had any interest under, the motion to quash appellant's execution.

The hazard which the surety incurred by the execution of said bond was, that the court below, as it did, would fix the value of said excavator at a greater amount than the judgment against it, instead of at a lessor amount than the judgment against it. That is to say that the defendant's surety incurred the legal hazard and responsibility of having the court fix a money demand against it for such property embraced in said bond as was found to be of greater value than the judgment and costs to which it was subjectable.

Section 164, Hemingway's Code of 1927, has no application to this case.

Appellant submits that this is a move of the principal defendant and debtor of the appellant, that is, S. A. Redding & Company, through and in the name of his surety, U. S. F. & G. Company to escape the just effects of the obligation imposed on him by the original judgment of the court. We are not undertaking to make the surety buy anything. We don't know if this judgment were enforced as written whether or not the surety would buy anything. The surety in this case carved out its own destiny in this case by voluntarily assuming the responsibility imposed on it by section 2607 and cannot be heard to complain that the enforcement thereof would be unwise, as a policy for the Legislature to have enacted, or unjust as a burden which he contracted with the principal defendant to and did assume.

The lower court entered the only judgment it could have rendered under section 2607 of said code on the original trial (R28). On the motion to quash said execution, the court, in effect, reversed its former order and entered another and different order which was not authorized by the statute.

The appellee's motion to quash was and is a collateral attack on the original judgment.

We urge that the court review and reconsider its former opinion, and that on a further consideration thereof, that the court will affirm the judgment of the lower court in so far as it sustained the motion to quash appellant's execution in the sum of one thousand eight hundred twenty-nine dollars against said surety, but that it reverses said judgment of the lower court in so far as it restrains the issuance and service of other and further proper process on said original judgment and that judgment be entered here permitting this appellant to have further proper process on said original judgment against said surety, as directed in the original judgment.

Chambers & Trenholm, of Jackson, for appellees.

There can be no contention but that the bond given by the defendant was a forthcoming bond. It will become more apparent upon considering that none of the sections dealing with the purchase-money lien and its enforcement, sections 2605, 2606 and 2607 of Hemingway's Code of 1927 (to which all our reference are made, the Code of 1930 not being in force when this case arose) define what kind of bond may be given, other than that the officer shall deal with the property "as in the case of attachment for debt," and that "the defendant may replevy the property as in the case of attachment against debtors." (Sec. 2606.)

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 dealt with as in the case of an attachment for debt," etc.

Quillan v. Paine, 94 Miss. 696, 47 So. 898 (1909).

In all cases the judgment against the sureties of the defendant shall be satisfied and discharged by the delivery to the sheriff of the property replevied within ten days after execution on such judgment shall have come to his hands.

Sec. 164, Hemingway's Code of 1927.

If the value of the property exceeds the amount of the debt, judgment against the surety is limited to the amount of the debt, but if the value of the property is less than the amount of the debt, judgment against the surety is limited to the value of the property. In other words, the liability of the surety can in no event exceed the value of the property which he has undertaken to have forthcoming to answer the judgment. And in any event, the liability of the surety is discharged by having the property forthcoming.

In construing the effect of the several statutes, they must be considered together, and effect given to each so as to harmonize with the others, and evolve from the whole the true legislative intent.

Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907; Barrett v. School District, 123 Miss. 370, 85 So. 125; Jackson County v. Worth, 127 Miss. 813, 90 So. 588; Peets v. Martin, 135 Miss. 720, 101 So. 78; Board of Supervisors v. Meridian, 114 So. 803.

In construing a statute the object is to get at its spirit and meaning, its design and scope. And that construction will be justified which evidently embraces the meaning and carries out the object of the law, although it be against the letter and grammatical construction of the act.

Dixon v. Doe, 1 S. & M. 70; Ingram v. Speed, 30 Miss. 410; Reed v. Manning, 30 Miss. 308; Board of Education v. Railroad, 72 Miss. 236, 16 So. 489; Logan v. State, 53 Miss. 431.

And an unjust and unwise purpose will not be imputed to the Legislature when a reasonable construction will save the statute from such imputation.

Huber v. Freret, 138 Miss. 238, 103 So. 3.

Measured by these rules, we submit that to place upon section 2607 of Hemingway's Code of 1927 the construction urged by appellant would be to change the spirit and meaning of the statutes dealing with a forthcoming bond, and alter their design and scope, but that to place upon it, in conjunction with sections 143 and 164 the construction placed upon it by the learned court below would be to embrace the meaning and carry out the object of the law, although it be against the letter of the act. That to place upon this section the construction asked by appellant would be to impute to the Legislature an unjust and unwise purpose, whereas the construction asked by appellee, and adopted by the trial court, is a reasonable one, and will save the statute from such imputation.

Even should it now be held that a surety upon a forthcoming bond in purchase money lien cases is not entitled to the protection of the chapter on attachments, such a holding should not be applied to the surety in this case.

State v. Longino, 109 Miss. 125, 67 So. 902; Odom v. State, 132 Miss. 3, 95 So. 253; Bank v. Posey, 130 Miss. 825, 95 So. 134.

W. W. Capers, trustee, claimant, was adjudged to have a superior claim to that of appellant, which existed at the time of the making of the forthcoming bond, to an amount more than two and a half times the adjudicated value of the property, to which claim the lien adjudged in favor of appellant was subordinated. The obligation of the surety was to have the property forthcoming subject to the deed of trust to Capers, trustee, yet appellant would have the surety pay his claim ahead of that deed of trust.

The judgment of the court below preventing appellant from further proceedings to collect...