Nunnery v. Baker

• Decision Date: 08 April 1940
• Docket Number: 34065
• Citation: 188 Miss. 596,195 So. 314
• Court: Mississippi Supreme Court
• Parties: NUNNERY v. BAKER

195 So. 314

188 Miss. 596

NUNNERY v. BAKER

No. 34065

Supreme Court of Mississippi, Division A

April 8, 1940

Suggestion Of Error Overruled May 20, 1940.

APPEAL from the circuit court of Hinds county HON. JULIAN P ALEXANDER, Judge.

Suit by Mrs. Dudley Smith to subject a check deposited by Herbert Nunnery with the City of Jackson to the payment of a judgment obtained by plaintiff against the Capital Terminal Company. Mrs. E. G. Baker appeared and claimed the check in satisfaction of a judgment theretofore obtained by her against the Capital Terminal Company. The suit was instituted in the county court. A decree was rendered dismissing the cause, and the case was carried by Mrs. Smith and Mrs. Baker to the circuit court. From a decree awarding the check to Mrs. Baker, Nunnery appeals.

Decree of the circuit court reversed, and decree of the county court affirmed.

Decree reversed, and affirmed.

L. F Easterling, Hilton & Kendall, and W. E. Morse, all of Jackson, for appellant.

The $ 1000 certified check posted by the appellant, Herbert Nunnery, with the City of Jackson could not be reached by a writ of garnishment for the debts of the Capital Terminal Company, Inc.

Travelers Ins. Co. v. Inman, 157 Miss. 810, 126 So. 399.

If the said $ 1000 certified check should be held to be a pledge the subject of the pledge is returnable to the pledgor upon the accomplishment of the purpose for which it was pledged.

Hart v. Moore, 171 Miss. 838, 158 So. 490; First National Bank v. Morgan, 104 So. 403, 213 Ala. 125.

A bond is prospective and not retroactive in its operation unless it contains express provisions to the contrary.

11 C. J. S. 428, sec. 51; Maryland Casualty Co. v. Hall, 125 Miss. 792, 88 So. 407; Johnson v. Bobbitt, 81 Miss. 339, 33 So. 73; Farrar et al. v. U.S. 8 L.Ed. 159.

A surety, guarantor, or indemnitor is liable only in strict accordance with the terms of his contract, and such liability will not be enlarged by implication or inference.

W. T. Raleigh Co. v. Rotenberry, 174 Miss. 319, 164 So. 5; National Union Fire Ins. Co. v. Currie, 180 Miss. 711, 178 So. 104; Cahn v. Wright, 119 Miss. 107, 80 So. 494; Wingo-Ellett & Crump Shoe Co. v. Naaman, 175 Miss. 468, 167 So. 634; Standard Accident Ins. Co. v. Bear (Fla.), 184 So. 97; Pyle v. Pizitz, 100 So. 822, 215 Ala. 398.

In case of successive bonds, each bond is liable only for loss occurring during its life.

U. S. F. & G. Co. v. Williams, 96 Miss. 10, 49 So. 742; Bryan et al. v. Kelly, 5 So. 346, 85 Ala. 569.

Robertson & Robertson and Stirling & Stirling, all of Jackson, for appellee.

In the case of State v. Bartlett, 30 Miss. 624, involving an officer's bond required as a condition precedent to his exercise of the duties and enjoyment of the emoluments, this court said: "The party having entered into the office and enjoyed the emoluments therefrom and attempted to exercise its duties, could not be heard to say that he had violated the law in so doing."

In Peck v. Critchlow, 7 How. (8 Miss.) 243, it was held that variance from the statutory bond cannot be assigned for error.

Section 758 of the Mississippi Code of 1930, too long to copy in full, provides that when bond is made to secure the faithful discharge of any duty, it shall inure to the person to whom it is designed by law as security, and be subject to judgment in his favor, no matter to whom it is made payable, what is its amount, nor how it is conditioned if said bond had the effect intended, etc. it is a valid obligation.

Moore et al. v. Bank, 183 Miss. 626, 184 So. 305; Great A. & P. Tea Co. v. Majure, 176 Miss. 356, 168 So. 468; Dansby v. Mutual Life Ins. Co. (N. C.), 183 S.E. 521, 189 S.E. 122.

Mr. Nunnery was required to file his bond or his check, a condition to doing business, did so, did business, allowed judgments by default, put up his bond and check to obtain permit, enjoyed the emoluments of the business by himself, his father and the company, took down his pledged assets and now endeavors to defeat collection by claim that he attached conditions to the deposit, all without the knowledge of the injured judgment creditors, beneficiaries, and when they were assuming as they had the right to do that the law had been complied with when they rode in the taxicabs.

Travelers Ins. Co. v. Inman, 157 Miss. 810, 126 So. 399.

Ordinary fairness, common honesty, as well as the law of the state and the ordinances of the city, demand that the $ 1, 000 check be applied to the just judgments held by these ladies, both of whom were badly injured, and one of whom is a cripple for life.

OPINION

Smith, C. J.

The Capital Terminal Company, a now defunct corporation, was engaged in the taxicab business in the City of Jackson, Mississippi. An ordinance of the city provides that: "All automobiles or busses, used for transporting passengers, operated in the City of Jackson, Mississippi, for hire, shall file an indemnity bond with the City of Jackson in the penal sum of Two Thousand Dollars ($ 2, 000.00), with a clause in said bond to satisfy any and all judgments of any person, firm or corporation, for personal injury or property damage, caused by the operation of said vehicle for hire in and over the streets and public places of the City of Jackson." This ordinance seems to have been interpreted by the city authorities as not requiring an indemnity bond for each of the automobiles of a taxicab company, but only one bond by a taxicab company in the sum of $ 2, 000, covering all of its automobiles.

On the 1st day of September, 1937, the Capital Terminal Company engaged in the taxicab business executed to the city an indemnity bond in the sum of $ 2, 000, covering all of its automobiles with the appellant, who was then president of the company, as surety thereon. With this bond, the appellant, as surety thereon, deposited with the city two $ 1, 000 U.S. Government Bonds. The indemnity bond recites that: "As surety herein (referring to the surety thereon), he limits his liability to the following described property held by the City of Jackson, Mississippi, and the surety herein represents and warrants that he has the authority to pledge said property for this bond."

On the 28th day of January, 1938, the appellant had ceased to be president of the Capital Terminal Company but acted for it as its attorney when called on by it so to do. On that day January 28, 1938, the company executed a new indemnity bond to the city in the sum of $ 2, 000, conditioned as required by the ordinance hereinbefore set out, with three sureties thereon, one of whom was Mrs. Ada J. Mendum. There was also a provision in the bond limiting the liability of the sureties thereon to certain real property described therein. The bond recited that: "The aforesaid property shall also be bound for any judgment or judgments which may be hereafter obtained by anyone under which that certain bond to the City of Jackson executed by the Capital Terminal Company, Inc., on the 1st day of September, 1937, wherein certain Government bonds were pledged as security would have been liable, this bond to all effects being in lieu thereof." The government bonds deposited with the city by the appellant with the indemnity bond on which he was surety were then returned to him by the city. On March 26, 1938, a representative of the city advised ...