Smith v. Roby

• Decision Date: 30 September 1871
• Citation: 53 Tenn. 546
• Parties: John D. Smith et al v. George W. Roby.
• Court: Tennessee Supreme Court

53 Tenn. 546

John D. Smith et al

v.George W. Roby.

Supreme Court of Tennessee.

September Term, 1871.

FROM GREEN.

Appeal in error from the judgment of the Circuit Court, February Term, 1870. E. E. GILLENWATERS, J.

R. McFarland for plaintiff in error, insisted:

1. The court had no right to make a rule on the plaintiff to increase the bond. The Code contemplates a bond in double the value of the property, and such bond was given. The bond required was to cover damages for the detention of the property, and such bond is not required by law.

2. The rule was improperly made absolute. The court having failed to make the rule absolute on the second day of the October Term, the rule expired, and the general order made after the expiration of the rule to continue all rules pending for security did not mend the matter, for there was none pending in this case. Besides, a general order made in no particular case, and not intended to operate as a general rule of practice, is a mere nullity.

3. The judgment is erroneous. If the property should be returned, the law does not give interest on its assessed value: citing Code, s. 3390.

S. T. Logan for defendant, insisted:

The court had authority to make the rule: citing Code, s. 3392; and also to continue the rule: citing Irvins v. Mathis, 11 Hum., 607; Betts v. Mansfield, 11 Hum., 604.

Baxter for defendant, cited, as to the power of the court to require additional bond, Owens v. Grundy, 8 Yerg., 436;Parks v. Allen, 2 Head, 523;Sharp v. Miller, 3 Sneed, 42;Phillips v. Barrett Wells, 2 Sneed, 154;Grills v. Hill, 2 Sneed, 711.

FREEMAN, J., delivered the opinion of the Court.

This was an action of replevin, originally commenced in the Circuit Court, by J. D. Smith against one George W. Roby. The plaintiff in error, Isenhour, was surety on the replevin bond in the sum of $500.

Declaration was filed in usual form in replevin at the October Term, 1865. Plea of not guilty was filed by defendant, on which issue was taken at December Special Term. After this, by consent of the parties, H. L. Barnes was substituted as defendant instead of George W. Roby. The first question presented is, whether this substitution of Barnes as defendant, instead of Roby, releases the surety on the bond, and makes a judgment against him void.

In the case of Phillips & Wiggins v. Wells. 2 Sneed, 154, Garrison had sued Kinslow upon a note before a justice of the peace, and obtained a judgment, which Kinslow took to the Circuit Court by certiorari. Kinslow gave bond, with two sureties, for the prosecution of the certiorari. In the Circuit Court, on motion of Garrison, the warrant was amended by striking out his name and inserting the name of one Wells. Judgment was rendered in favor of Wells against Kinslow and the sureties on his bond. This court held, that by the amendmest of the warrant, putting in a different plaintiff, the sureties were released. The court say: “The plaintiff had the right to amend by changing name of the parties; but to this new party the sureties had entered into no obligation, and he would have no judgment against them on the bond. It may be,” says the court, “that without the amendment, the party for whom they were bound would have succeeded, and we can not tell but that it was on this ground that they were willing to become sureties for him. In Harris et al. v. Taylor, 3 Sneed, 541, the same principle is held. That was a judgment on a replevin bond given to replevy property attached in the suit. The undertaking of the sureties was in the joint behalf of Howell and Nancy Harris, but the latter was discharged during progress of suit.”

The court held the sureties released.

We can not see how we can hold the surety liable on the bond given for prosecution of suit against George Roby, in favor of said Roby, to a judgment in favor of H. L. Barnes, without overruling the above case. It might well have been that plaintiff would have recovered against Roby; and the fact of the substitution of the defendant Barnes in his stead would indicate that the fact was that way. The surety ought not to be held liable on his bond to one person to a judgment in favor of another. It is beyond the terms of his contract.

This disposes of the question as to the surety, Isenhour.

The next question is, whether the suit was properly dismissed under the rule on plaintiff to give new security on his replevin bond?

At June Term, 1867, an affidavit was made that the replevin bond was not sufficient in amount, and a rule made on plaintiff to give a new replevin bond in the sum of $800 on or before the second day of next term, or his suit will be dismissed. Plaintiff had notice served on him of this rule. At next term of the court, on Monday of the term, this cause was continued on account of absence of counsel for defendant at the Supreme Court. This was the 11th day of the month. On the 15th of the month (Friday) a general order was entered, reciting that in some of the causes that had been continued on account of absence of counsel at the Supreme Court, there were rules for security pending, therefore the court ordered that such rules be continued till next term of the court, and the...