Opinion
No. 30387.
May 15, 1933.
1. REPLEVIN.
Absent contrary agreement, judgment against sureties on defendant's bond in replevin action must provide that sureties restore property or pay value thereof, and, in addition, pay costs and damages.
2. JUDGMENT. By agreement in replevin suit, absolute money judgment may be rendered against defendant and sureties on bond, and sureties' consent to judgment need not affirmatively appear therefrom.
Sureties' consent to absolute money judgment rendered against them need not affirmatively appear from judgment, for by signing the replevin bond they became responsible and liable to satisfy any valid judgment rendered against the principal.
3. JUSTICES OF THE PEACE.
Circuit court to which case was removed from justice court by certiorari held confined to record (Code 1930, section 72).
4. REPLEVIN.
That replevin affidavit was not marked "filed" by justice of peace, and that affidavit omitted defendant's name, and that replevin bond did not disclose name of particular justice before whom bond obligated defendant and sureties to have automobile, held not to deprive justice of power to render judgment in replevin suit.
5. REPLEVIN.
Omission of defendant's name in replevin affidavit, and omission in replevin bond of name of particular justice of peace before whom bond obligated defendant and sureties to have automobile, could be cured by amendment.
APPEAL from Circuit Court of Wayne County.
W.M. Hutto, of Waynesboro, for appellant.
If plaintiff recovers in replevin he may recover against the losing party and his sureties for the restoration of the property and damages and cost. A surety on a redelivery bond in replevin is liable for cost after judgment for plaintiff though the bond conditioned in compliance with the form prescribed by statute be silent as to cost.
Sparks v. Hopson, 35 So. 446.
The appellant submits, that, the justice court had full jurisdiction over the subject matter, as the record discloses that the value of the property did not exceed the justice court jurisdiction, and this court needs no citations to this contention, and second that all parties were properly in court, either by personal service or by the signing of the redelivery bond and that the justice court had power to enter the agreed judgment.
11 Enc., page 1028.
An agreed judgment is just as efficacious as though it had been entered after a trial of the issues and is binding and conclusive between the parties and their privies unless procured by fraud.
11 Enc., page 1028; 23 R.C.L., pages 940-941, sec. 113.
It is held, that a surety by signing a replevy bond, makes his principal on the bond his agent to compromise a claim for damages arising out of the replevin, and upon such compromise, the court has power to enter up judgment against the principal and surety on his bond.
23 R.C.L., page 940, sec. 113.
The agreement shows, in the judgment entered by the justice court, what the effect was. The judgment is presumed to be legal and binding, and this is true, where there was a state of facts that would justify the judgment.
Duncin v. McNeal, 31 Miss. 704; Cannon v. Cooper, 39 Miss. 784; Henderson v. Winchester, 31 Miss. 290.
The judgment is not void as against the sureties on the bond. By signing the bond they became responsible and liable to satisfy any valid judgment rendered against the principal.
23 R.C.L., page 940, sec. 113; 100 So. 10; 34 Cyc., page 1585.
Chas. M. Wright and Russell Wright, of Meridian, for appellees.
On the face of the judgment of the justice court the Federal Credit Company, plaintiff, recovered the possession of the truck, and the judgment shows to be a consent judgment between the plaintiff and the defendant, that the plaintiff recover against the defendant Britton and the sureties judgment in the amount of one hundred ninety-four dollars and forty-six cents, together with all costs. It will be noted that from the record before the circuit court there was no judgment by which the defendant might elect to surrender the property or to pay the judgment.
No declaration was ever filed, as required by law, and for all the record shows the plaintiff and the defendant appeared in court and agreed between themselves that a judgment might be entered against the defendant and the appellees when, so far as the record shows, the appellees were not in court. We submit that before a valid judgment by default might be entered, it is necessary that all of the prerequisites to jurisdiction must be affirmatively shown of record. We further submit that a consent judgment may not be entered as against parties who are not properly in court, and we submit that the record must affirmatively show that these parties, appellees here, were properly in court at the time the judgment was entered.
The judgment in an action in replevin should be in the alternative, either against the defendant and the sureties on his bond that they restore the property to plaintiff, if to be had, or the value thereof.
Whittiker v. Goodwin, 53 So. 413, 97 Miss. 663; Miller v. Griffin, 70 So. 699, 110 Miss. 535; Evans v. Junius Hart Piano Co., 106 So. 9, 140 Miss. 467.
The justice of the peace had not power to render such a judgment. The statute granting unto the justice of the peace the power to render a judgment in the alternative, does not grant unto him the power to render a money judgment and the possession of the property both, and does not grant unto him the right to give judgment for the sale of the property to be applied on the full amount of the judgment.
The case grew out of a collateral attack on the judgment and not on a direct attack. The term collateral attack is opposed to direct attack.
The learned circuit judge saw no reason, apparently, for entering up a judgment for the possession of property which was admitted already to have been restored to the plaintiff, or for costs which it was not denied had been paid. No other damages were claimed, except the attorney's fee, and an attorney's fee is not allowable.
Thornton v. Gardner, 99 So. 131, 134 Miss. 485; Mars v. Germany, 100 So. 23, 135 Miss. 387.
The judgment is invalid and under the pleadings and under the record at the time it reached the learned circuit judge, in so far as these sureties were concerned, he rendered the only judgment that could have been properly rendered against them.
This is an appeal from a judgment of the court below in a case brought to it from the court of a justice of the peace on a writ of certiorari. The record certified by the justice of the peace presents a suit in replevin by the appellant against Britton for the recovery of an automobile which was valued in the replevin affidavit and in the return on the writ at two hundred dollars. Britton gave a forthcoming bond therefor with Sims, Sullivan, and Rogers as sureties thereon. The judgment rendered by the justice of the peace is as follows:
"This cause this day coming on to be heard and the plaintiff appearing in court and the defendant also appearing in court and it appears that defendant is making no defense, the same being a suit in replevin and by agreement of both parties plaintiff and defendant the following verdict is hereby entered, to-wit:
"It is hereby ordered by the court that the plaintiff, Federal Credit Company, have and recover of and from the defendant the possession of the automobile truck sued for to-wit; One Chevrolet Truck, Chasis, one and one-half ton, 1929, Model, Motor No. 503554, of the value of one hundred sixty-nine dollars and ten cents, together with the sum of twenty-five dollars and thirty-six cents attorneys fee, being fifteen per cent of the principal as provided in said note.
"It is further ordered by the court that the plaintiff recover judgment against the defendant D.F. Britton, and the sureties on his bond, A.L. Rogers, J.C. Sims, and F.C. Sullivan, in the aggregated sum of one hundred ninety-four dollars and forty-six cents, together with all cost of court in this cause.
"It is further ordered by the court that the defendant may elect to pay this judgment or surrender said property, same to be sold as required by law and the proceeds applied to the judgment."
The court below modified this judgment so as to eliminate therefrom the personal judgment against the sureties on the bond set forth in the third paragraph thereof. In the absence of an agreement to the contrary, the judgment to be rendered against the sureties on the forthcoming bond of a defendant in an action of replevin is that they restore the property replevied or pay the value thereof, and, in addition, for costs and damages, if any. By agreement, however, an absolute money judgment may be rendered against the defendant and the sureties on his replevin bond, Starling v. Sorrell, 134 Miss. 782, 100 So. 10, 11, and, as there held, the consent of the sureties to the judgment need not affirmatively appear therefrom, for "by signing the bond they became responsible and liable to satisfy any valid judgment rendered against the principal." On the face of the record, therefore, to which the court below was confined (section 72, Code 1930), the judgment of the justice of the peace appears to be valid.
Three other defects are alleged to appear in the record, because of which it is said that the justice of the peace was without power to render the judgment. First, the replevin affidavit was not marked "filed" by the justice of the peace; second, the affidavit does not disclose the name of the person alleged to have unlawfully detained the automobile; third, the bond obligates Britton and his sureties to have the automobile "before the Justice Court of District One of Wayne County, to be held at Buckatunna, Mississippi, on the 18th day of April, A.D. 1931," without disclosing the name of the particular justice of the peace. All of these complaints are without merit. The omission of the defendant's name in the replevin affidavit could have been cured by amendment, as also could have been the alleged defect in the bond, if defect in fact it is.
The judgment of the court below will be reversed; the judgment of the justice of the peace will be affirmed, and a judgment will be rendered, as the court below should have done, for the appellant on the appellee's bond for the writ of certiorari.
Reversed, and judgment here for the appellant.