Smith v. Lacey

86 Miss. 295

• Court: Mississippi Supreme Court
• Decided: April 15, 1905
• Status: Published

Opinion

Whitfield, O. J.,

delivered the opinion of the court.

The case of Goyer Company v. Jones, 79 Miss., 253 (30 South. Rep., 651), has no application here. That was a case of an appeal bond, and, of course, stood upon an entirely different principle from that occupied by -the sureties in a forthcoming bond for attached property. The case is controlled in all its aspects by Hill v. Harding, 9 Sup. Ct., 725 (32 L. ed., 1083). The court say: “The question not then passed upon, and now presented, is whether, since he has obtained his discharge in bankruptcy, there is anything in the provisions of the bankrupt act to prevent the state court from rendering judgment on the verdict against him, with a perpetual stay of execution, so as to prevent the plaintiffs from enforcing the judgment against him, and leave them at liberty to-proceed against the sureties in the bond or recognizance given to dissolve an attachment made more than four months before the commencement of the proceedings in bankruptcy. Such attachments being recognized as valid by the bankrupt act (Rev. St. of U. S., sec. 5044), a discharge in bankruptcy does not prevent the attaching creditors from taking judgment against the debtor in such limited form as may enable them to reap the benefit of their -attachment. When the attachment remains in fortíe, the creditors, notwithstanding the discharge, may have judgment against the bankrupt. . . . The judgment is not against the person or property of the bankrupt, and has no other effect than to enable the plaintiff to charge the sureties in accordance with the express terms of their contract, and with the spirit of that provision of the bankrupt act which declares that (no discharge shall release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise.’ Rev. St. of U. S., sec. 5118; In re Albrecht, 17 N. B. R., 287 (Fed. Cas. No. 145); Hill v. Harding, 116 Ill., 92 (4 N. E., 361); Barnstable Sav. Bank v. Higgins, 124 Mass., 115.”

Under Code 1892, § 147, the lien of the attachment was not displaced by the execution of the forthcoming bond. Jacobson v. Horne, 52 Miss., 186; Robinson v. Soule, 56 Miss., 551.

Reversed and remanded.