Helmer, Bros. v. Hastings

107 So. 551, 142 Miss. 403, 1926 Miss. LEXIS 95

• Court: Mississippi Supreme Court
• Decided: March 29, 1926
• Docket: No. 25579.
• Status: Published

Opinion

McGowen, J.,

delivered the opinion of the court.

General Hastings filed his petition with a justice of the peace, alleging that he had a laborer’s lien on certain lumber in the sum- of seventy-one dollars and thirteen cents, due and owing to him by Helmer Bros.; Helmer Bros, being composed of Boss, Bussell, and Eugene Helmer. The affidavit declared that he had a lien on the lumber described, and a writ of seizure was issued by the justice of the peace, directing the proper officer to seize the lumber and summon the Helmers, naming each of them,, on a day named in the writ, to appear in that court, and the return of the sheriff was that the writ of seizure'was served on each of the defendants, naming them, and in due time. Also the justice of the peace issued summons for the defendants returnable on the same day, and the return of the officer on that summons is as follows: “Executed this the 20th of June, 1924. M. L. Humphreys, Constable.”

The record and judgment of the justice of the peace shows that the defendants appeared in the justice of the peace court, and filed a written plea,; and the judgment conclusively shows that all of the defendants appeared in the cause and that the court heard “all of the evidence” and “all of the argument of counsel,” and found for the plaintiff and rendered judgment in his favor for seventy-one dollars and thirteen cents, and condemned the lumber to be sold for the payment of the judgment; whereupon the three Helmers above named filed an appeal bond to the circuit court, which bond was signed by each of them and by Joseph Bedhead and E. W. Graves as sureties.

The record was filed in the circuit court where the defendants Helmer Bros., a partnership composed of Boss Helmer, Bussell Helmer, and Eugene Helmer, according to the judgment of the circuit court, failed to prosecute their appeal and wholly made default therein, and a judgment was rendered against them for the sum of seventy- one dollars and thirteen cents, with interest and costs; no judgment being rendered against Bedhead and Graves, who were sureties on the appeal bond.

The first objection urged for appellant is that the circuit court was without jurisdiction because the justice of the peace was without jurisdiction, for the reason that the return on the summons “executed” did not show that the defendants had been summoned as the law directs. There are two answers to this point: First, that the defendants, according to the record, appeared in the court of the justice of the peace and defended the cause: and, second, that there was a good and valid return made by the officer on the writ of seizure wherein the defendants were summoned to appear and defend the action.

Counsel next insists that the judgment of the circuit court is void because no judgment was entered by the circuit court against the sureties Bedhead and Graves on the appeal bond by which the case was appealed to the circuit court. It is true that the circuit court only rendered a judgment against the defendants, who were appellants from the justice of the peace court, and counsel insist upon a literal application and construction -of the statute authorizing appeals from the justice of the peace court and judgment upon the appeal bond given in such cases.

Section 66, Hemingway’s Code, relating to the trial of cases appealed from the justice of the peace court, in part, provides:

“If the defendant be the appellant, and judgment be rendered for the plaintiff in the original suit for a sum equal to or greater than he recovered before the justice of the peace, ten per centum damages upon the amount thereof shall be included in such judgment; and any judgment against an appellant shall be rendered against the principal and his sureties jointly.”

Counsel insists that the judgment is void because the court only rendered a judgment against the principal and did not render the judgment against either of the sureties, and cites the case of Leathers v. Howe & Co., 66 So. 280, 108 Miss. 1, wherein this court held (Judge Reed being the organ of the court) :

“A judgment against the appellant and only one of his two sureties is void, and may be vacated on subsequent motion, and the cause reinstated for hearing.”

We think Judge Reed intended that the emphasis should be placed upon the word “jointly” with reference to the sureties on the bond. We think the judgment was in appellant’s favor when his sureties were not held liable. Of course, if an effort had been made to violate the mandate of the statute and hold one surety liable and release the other, the effort would be a vain one; but in this case the judgment, being upon a trial of the cause de novo in the circuit court, was a proper judgment, although the plaintiff was entitled to take judgment against the sureties jointly if he chose to do so, as he was likewise entitled to ten per cent, damages if he chose to impose the damages. But a waiver of a right or the failure to grant additional rights which plaintiff may have, all of which is favorable to the defendant, may not be successfully interposed to render null and void the judgment.

The judgment against the principal of the bond on an appeal from a justice of the peace court to "the circuit court, ignoring the sureties, is valid and binding upon the principal, and, to the extent that his sureties are not held liable, is a judgment favorable to him.

We think the objections to the judgment in the court below arq without merit.

Affirmed.