United States Fidelity & Guaranty Co. v. Jackson

• Decision Date: 29 November 1920
• Docket Number: 21327
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. JACKSON ET AL
• Court: Mississippi Supreme Court

86 So. 456

123 Miss. 676

UNITED STATES FIDELITY & GUARANTY CO. v. JACKSON ET AL

No. 21327

Supreme Court of Mississippi

November 29, 1920

October 1920

1. APPEAL AND ERROR. Practice on appeal by one judgment defendant without joining codefendant stated.

Under section 43, Code of 1906 (Hemingway's Code, section 19) where one defendant appeals by giving supersedeas bond, a summons should issue to the other judgment defendants before proceeding to final hearing of the appeal, and, if the appellant does not do so, the appellee should have summons issued or move to dismiss the appeal for the failure to have summons issued. Until such summons is issued and such defendant not so summoned fails to join in such appeal, the supersedeas obtained by the first appellant will supersede all proceedings on the judgment.

2 INJUNCTION. Damages and attorney's fees on dissolution held not allowable.

Where an injunction was rightfully sued out to prevent the issuance of an execution on a judgment superseded by appeal proceedings, and where the cost and judgment appealed from was paid and satisfied with reasonable promptness on the termination of appeal proceedings, it is error to allow damages and attorney's fees for filing an answer and motion to dissolve the injunction.

HON. L F. EASTEKLING, Chancellor.

APPEAL from chancery court of Hinds county, HON. L. F. EASTERLING Chancellor.

Suit by the United States Fidelity & Guaranty Company against Ed. Jackson and others for an injunction. From an adverse decree, complainant appeals. Reversed and rendered.

Judgment reversed.

Wm. M. Hall, for appellant.

The chancellor's holding that the injunction was rightfully sued out was correct because the appeal of the lumber company necessarily suspended the judgment creditor's rights against the surety in a judgment in replevin, since the judgment against the surety was to pay the value of logs only in event its principal did not return the logs, and the principal's obligation to return the logs was suspended by its appeal. There appears to be no Mississippi case ruling upon a similar state of facts, but such a state of facts is ruled upon in a Texas case, Wren v. Peel, 64 Texas, 374, upon principles laid down at an early date by the supreme court of Mississippi. In the Texas case there had been a judgment recovered against the principals and their sureties, and the principals and some of their sureties appealed with supersedeas, and an execution pending the appeal was sued out against one of the sureties who had not joined in the appeal and his land was sold thereunder and a controversy arose between the purchaser at that sale and one claiming title otherwise, and the court held that the judgment could not, pending the principals' appeal, be enforced against a surety not joining in the appeal. Brandt on Suretyship, 27; Fell on Suretyship, 433; M. & M. Bank v. Bank of Pennsylvania, 7 Watts & Serg., 335; Pasch Dig, 5100; Parnell v. Hancock, 48 Cal. 455.

The principle upon which that decision is predicated, to-wit: that a judgment does not destroy the relationship of principal and surety and convert a surety into a principal, was, as stated, laid down at an early period by the court. Davis v. Mickell, 1 Tr. Ch., 548, 570, and Newell v. Ramer, 4 Miss., 684. In the latter case the suretyship was upon a replevin or forthcoming bond.

It seems also settled in this state as a general proposition that a surety is not a necessary party to his principal's appeal. Jayne v. Lumber Co., 108 Miss. 449. It must follow from that rule that the principal's supersedeas necessarily suspended the creditor's rights against the surety. It was upon these authorities that the court below held that the injunction was rightfully sued out. The case then presents as the principal if not the sole question whether damages should be assessed when an injunction rightfully sued out is dissolved.

There may be cases where an injunction rightfully sued out would at the termination of a litigation have to be dissolved, but that does not under the authorities seem to determine complainant's liability for damages. The liability for damages turns it seems upon the question whether the injunction was rightfully sued out. If one's rights entitled him to the intervention of equity with an injunction, the result of the exercise of that right, although some damage flows to the defendant, would simply present a case of damnum absque injuria.

No argument, however, is needed in Mississippi upon that proposition for it has been settled in Burroughs v. Jones, 79 Miss. 214. In that case the complainant was entitled to his injunction when it was sued out, and only because of subsequent developments was the situation changed just as here, and the court held that his right to the injunction at that time determined, saying: "We think, however, that the court erred in giving any damage to Jones on the injunction bond of Burroughs because when he sued out his injunction, his right thereto was undeniable."

Appellees' collection of the judgment never did depend upon the dissolution of the injunction. There were others liable ahead of this appellant for the amount of the judgment, namely, its principal, the lumber company, and two later sureties, namely, the bond company signing the lumber company's supersedeas bond in connection with the appeal from the supreme court of Mississippi to the supreme court of the United States, and the bond company signing the supersedeas bond in connection with the lumber company's appeal from the circuit court of Coahoma county to the supreme court of Mississippi. It is fundamental that primary liabilities rest on the last surety. Moore v. Lassiter, 16 Lea (Tenn.) 629, 633; Chester v. Broderick, 131 N.Y. 549; Shannon v. Dodge, 17 Colo. 164; Becker v. People, 164 Ill. 267; Coonradt v. Campbell, 29 Kan. 391; Boza v. Milliken, 4 Ky. L. Rep. 700.

It was not shown that when the motion was filed or at the hearing that the judgment was not collectible from the principal or either of said latter sureties.

If the judgment had been collectible only from this appellant, there would have been no necessity for dissolving the injunction after the supreme court of the United States had affirmed and remanded the cause, because appellant's injunction was to restrain the collection of the judgment only until the supreme court of the United States had passed upon the lumber company's appeal.

The fact that appellees, through their attorneys, had received payment of the judgment, damages and interest before the hearing and the clerks of the several courts had received their costs, made it wholly unnecessary to dissolve the injunction.

Appellee's motion, therefore, was certainly unnecessary and the cost thereof cannot be made the predicate for a claim for damages even if liability for damages turned upon the necessity for dissolution instead of the rightfulness of the injunction.

Appellees really suffered no damage since they collected the full amount of their judgment, damages, interest and court costs. The chancellor should have denied the motion, and because the injunction had been rightfully sued out, taxed appellees with the costs. The decree of the chancery court, therefore, should be reversed, and a decree entered here for appellants, taxing appellees with the costs below and the costs here.

Green & Green, for appellee.

The lumber company gave a forthcoming bond upon which the surety company for full value to it paid, undertook to have forthcoming the logs which were the subject of the original replevin suit, which logs were, in virtue of such bond, taken by appellant and converted, so that when judgment was finally rendered, by reason of the re-delivery of the property to the lumber company, it had ceased to exist, and on that date there was a judgment against both the lumber company and the surety company.

As was said in Thomas v. Wyatt, 17 Miss. 307, by this court: "The action was replevin, brought by Thomas v. Wyatt, the verdict was for the defendant and the court rendered judgment as the statute requires, against the plaintiff, and his sureties in the bond for the amount of the verdict. There were two sureties, but Thomas alone sues out the writ of error which writ recited a judgment against Thomas in favor of Wyatt. The record returned shows a judgment against Thomas and Landsdale and Byran became parties to the judgment. It is against the three parties as a joint judgment, and of course they should be joined in the writ of error." See Jayne v. Nash, 66 So. 813; Tardy v. Rosenstock, 80 So. 1. In code section 2683, as construed in Steem v. Finley, 25 Miss. 535, the application of this judgment was both joint and several.

By section 43 of the Code, section 19, Hemingway's Code, it is expressly provided: "Any one or more of the parties to a judgment or decree may appeal therefrom; and if all the parties to a judgment or decree do not join in the appeal, the clerk of the court from which the appeal is taken, shall issue a summons, when the appeal is taken, to such as do not join the appeal to appear before the supreme court, at the return term of the appeal, and unite in the appeal and if they fail to obey the summons, they shall not afterwards have the right to appeal, and the judgment or decree of the court below shall remain in full force against them."

By section 44, the parties in appealing can be summoned by the clerk of this court, and by section 45 are allowed to join in the appeal, but under all circumstances must give bond just as if they had originally appealed; in short, the surety company cannot come before this court as an appellant even though a surety on a forthcoming bond originally, until and unless and except it had executed as a...