Bosley v. Bruner

24 Miss. 457

• Court: Court of Appeals of Mississippi
• Decided: October 15, 1852
• Status: Published

Opinion

Mr. Justice Yerger

delivered the opinion of the court.

The plaintiff in error sued the defendants, as sureties of Elizabeth Newsom, on a bond executed by them according to the fiat of the Hon. George Coalter, directing a writ of error coram nobis to operate as a supersedeas of a judgment in the case of Bosley v. Newsom in the circuit court of Warren county. The bond was conditioned “ to pay the judgment, damages, interest, and costs, in case the writ of error coram nobis should be dismissed; and also to perform the sentence and judgment which the circuit court of Warren county might render in the premises.”

By a special verdict, it appears that the original judgment of Bosley v. Newsom was void, it having been rendered against he'r without notice or service of process. It also appears that the writ of error coram nobis was quashed, and Mrs. Newsom ordered to pay the costs; from which order no appeal or writ of error was ever prosecuted. A judgment for the defendants was rendered on the special verdict, from which judgment a writ of error has been sued out..

It is contended by the defendant’s counsel that, inasmuch as the original judgment of Bosley v. Newsom was void, the bond taken for the prosecution of the writ of error coram nobis was without consideration, and, therefore, void. We do not think this position is tenable. The consideration of the bond sued upon in this case was not founded upon the original judgment, but was the order for and issuance of a writ of error coram nobis to operate as a supersedeas; which order was obtained, and writ of error and supersedeas issued, upon the application of Mrs. Newsom, for the purpose of enabling her to correct an alleged error in the original judgment. Surely, there can be no doubt that the order of the court, and the issuance of the writ of error and supersedeas in accordance therewith, were legal, regular, and valid acts; and as they were only granted upon condition that the party executed the bond, — a condition unquestionably legal and proper in itself, — there was full and ample consideration for the bond.

It may be true, and in our opinion it is true, that the writ of error coram nobis should have been granted, and that upon the trial before the circuit court the original judgment should have been set aside, because no notice was served upon the defendant; yet that was a question which had to be decided by the circuit judge in the first instance. And although he may have decided erroneously against the party taking out the writ, yet if that party saw fit to lie by and acquiesce in the decision, we think it is entirely too late to resist a suit upon the bond, which was originally founded upon a sufficient consideration, and the conditions of which have' certainly been broken. If the parties have sustained any wrong, it has been occasioned by their own laches, in neglecting to appeal from the order of the judge quashing the writ of error. In such a case, where a party sustains injury by failing to adopt the means of defence given to him by the law, we have repeatedly held that he is without redress. Conceiving the consideration of the bond to be ample, another question arises, to what extent have the conditions been broken, -and how far can a recovery be had against the defendants. They were only liable to pay the original judgment, &c., of Bosley v. Newsom, in the event the writ of error was “ dismissed.” By the special verdict, it appears that the writ of error was “ quashed,” not “ dismissed.” Is there any difference between “ quashing” and “ dismissing” a writ of error? We incline to the opinion that there is. The term “ quash,” as applied to writs of error or other writs, is predicated of some defect in the writ itself, or in the form of the writ, which defect does not reach to the merits of the case. Tidd’s Pr. 161, 1163. The usual practice in this State has been, as far as.we have been able to ascertain it, whenever a writ is “ quashed ” for mere formal exceptions, to grant the party a new writ upon his original plaint.

The term “ dismiss ” was not originally applied to common law proceedings, but seems to have been borrowed from proceedings in the court of chancery, where in practice the term is applied to the removal of a cause out of court, without any further hearing. Bouvier’s L. Die. The term when used is applied to the removal or disposal of the cause itself, and not to the mere annulment of the writ. Such we conceive to have been the sense in which the parties to this bond used the word “ dismissal.” And in our opinion, the condition of the bond to pay the judgment, &c., if the writ of error should be “ dismissed,” has not been broken by a refusal to pay on the judgment of the court “ quashing ” the writ.

But it appears from the special verdict, that the court, on quashing the writ of error coram nobis, pronounced a judgment for costs. The bond was conditioned “ to perform the judgment the circuit court might render in the premises.” The defendants are surely bound for the performance of this condition, and are liable for the costs adjudged. It was, therefore, erroneous in the court below to render judgment on the special verdict entirely absolving, the defendants; and for this error the judgment must be reversed. The special verdict itself is defective, in not specifying the amount of costs awarded in the case. It finds a general sum of $208.55 damages for the plaintiff, if the law is believed to be in his favor; but the finding does not specify what portion of this sum is for costs awarded, as contradis-tinguished from the amount of the original judgment of Bosley v. Newsom; and being defective in this particular, we cannot pronounce judgment on it. We, therefore, set aside the special verdict, and order a venire facias de novo to ascertain this fact.

Judgment reversed, special verdict set aside, cause remanded, and venire facias de novo awarded.