Wynne v. Edwards

• Decision Date: 31 December 1846
• Citation: 26 Tenn. 418
• Parties: WYNNE et al. v. EDWARDS.
• Court: Tennessee Supreme Court

26 Tenn. 418

WYNNE et al.

v.EDWARDS.

Supreme Court of Tennessee.

December Term, 1846.

This judgment was rendered in the circuit court of Sumner county by Judge Maney. From this judgment the defendants appealed.

Guild and Baldridge, for plaintiffs in error.

Trousdale, for defendant in error.

TURLEY, J., delivered the opinion of the court.

This is a suit in which judgment was rendered in the circuit court of Sumner against John Walsh, constable, and Alfred R. Wynne, James A. Blackmore, and Joel Parish, his sureties. There is no bill of exceptions, but there is an order made by the court that a copy of the constable's bonds, and the proceedings therein, be made part of the record and sent up with the transcript.

In pursuance of this order the clerk certifies a bond to this court, from which it appears that Isaac P. Parker was a cosurety with the plaintiffs in error; he also certifies an order of the county court of Sumner, made at its April term, 1844, by which, on motion, it was ordered that Isaac P. Parker be released from his securityship of John Walsh, constable, in district No. 5, whereupon Joel Parish appeared and acknowledged the bond entered into at a former term of the court by the said John Walsh, Isaac P. Parker, A. R. Wynne, and James Blackmore; two objections are now taken to the judgment of the circuit court.

1. That the release by the county court of Isaac P. Parker, and the substitution of Joel Parish in his stead, is a release of all the sureties.

2. That, if Parker be still bound as surety, there is no judgment against him, which, under the decision of this court, must reverse the judgment, inasmuch as a judgment on motion must be against all the sureties.

As to the first objection, we are clearly of opinion that the order of the county court releasing I. P. Parker is a nullity, and that he is still a party to the bond, and of course his co-sureties have not been injured by the order.

As to the record, it is to be observed that this court has only held that the judgment must be against the living sureties; if one be dead, steps may be taken, by motion, upon the bond without noticing him; whether Parker be alive or dead does not appear from this record.

But there is an unanswerable objection to a reversal of this judgment; there is no bill of exceptions by which the bond becomes a part of the record, and we cannot, therefore, notice it. There is an order upon the minutes by which it is directed that the bond and...