Opinion
No. 36050.
February 25, 1946.
1. DIVORCE.
Record, in absence of documentation of testimony by proper receipts and vouchers, disclosed no error in decree resolving mutual accounts between former husband and wife and fixing amount due wife for occupancy of home by husband and rent collected by husband from tenants pending appeal from divorce decree awarding title and right of possession of home to wife, after allowing husband credit for repairs, utilities, and maintenance.
2. DIVORCE.
Sureties on supersedeas bond to stay, pending appeal therefrom, enforcement of divorce decree awarding title and right of possession of home to wife, were liable for amount due wife for husband's occupancy of home and rent collected by him thereon pending appeal, though such amount was adjudged in separate suit for accounting (Code 1942, sec. 1163).
APPEAL from the chancery court of Amite county, HON. R.W. CUTRER, Chancellor.
Clay B. Tucker, of Woodville, for appellant.
Under the testimony in this record, appellant should have been awarded the sum of $75 shown to have been awarded the sum of $75 shown to have been collected for the month of December, 1944, and not deposited in the bank, the sum of $16.05 shown to have been collected in the months of July and September, 1944, and not deposited in the bank and not accounted for, and the sum of $42.85, the difference in the water and light bill as claimed by appellees and the actual water and light bill as shown by the statement of the superintendent of the water and light company of the Town of Gloster, and should have recovered the sum of $19.16 allowed by the chancellor as payment on the butane gas system, which payment was shown to have been actually made on September 21, 1943, making a total amount of $153.06 in addition to the amount of $78.84 as decreed, and that the judgment should be against all of the appellees here for the sum of $231.90.
The supersedeas bond in this case should have been conditioned as required by Section 1165, Code of 1942, but the bond in this case was conditioned according to Section 1169, Code of 1942, but when a bond or obligation of any kind shall be executed in any legal proceedings, it shall inure to the person to whom it is designed by law as a security, and be subject to judgment in his favor, no matter to whom it is made payable, nor what is its amount, nor how conditioned, and the persons executing such bond shall be bound thereby and shall be liable to the judgment or decree on such bond or undertaking, as if it were payable and conditioned in all respects as prescribed by law.
Code of 1942, Sec. 1673.
Sureties on an appeal bond, upon the filing and approval of the bond, make themselves parties to the appeal and answerable to the appellee in respect to all questions touching liability on that bond.
Great A. P. Tea Co. v. Majure, 176 Miss. 356, 387, 167 So. 637; 168 So. 468; Perkins v. Watson et al., 92 Miss. 452, 46 So. 80; Code of 1942, Sec. 1166.
Fred A. Anderson, Jr., of Gloster, for appellee.
In the rendering of the decree of the learned chancellor below the court found by virtue of the testimony presented in open court that B.B. Hemphill should pay $20 per month for the use of a room which he occupied in the dwelling in question for nine months, or a total of $180, and in addition thereto the court found that there was $160 not properly accounted for, or a total of $340. The court held that the appellee herein was entitled as an offset against this discrepancy the sum of $261.16 for lights, water, light repairs, janitor service and gas fixtures and repairs, or a difference of $78.84, which the appellee herein was ordered by the court below to pay to the appellant herein. The appellant contends that certain rents were collected and not accounted for. This the defendant denied, both in his own testimony, and no proof whatsoever was made of any misappropriation. Indirectly the appellant endeavors to make out a case by showing that certain sums of money which were collected by the appellee were not deposited in the Amite County Bank, as shown by bank statement introduced. The appellee states that the rent was not paid on time and admits that he did take $261.16 out of rents collected to pay the bills necessary for the maintenance and operation of this dwelling as a tenant house, which allowance was ratified and approved by the court below.
Our courts, since the time they began functioning in Mississippi, have held that the burden of the proof is upon the complainant to make out a case and to prove by preponderance of the evidence the facts complained of. To cite cases on this holding of law would merely be superfluous. We submit that the complainant below made absolutely no proof of any misappropriation of rents collected and the appellee herein respectfully submits that neither he nor his sureties are liable for any sum whatsoever.
Mrs. Hemphill filed her bill against her husband and sureties upon his former supersedeas bond for an accounting of rents from her home. The suit is a sequel to former litigation between the same parties. 197 Miss. 783, 20 So.2d 79.
The former case affirmed a decree granting divorce to appellant and establishing her title to the home. It was remanded for reexamination of the respective rights as to certain personalty. The enforcement of this decree was stayed by the supersedeas bond, whereby the appellee was enabled to occupy part of the property and collect rents upon the remainder. The present bill is for an accounting for such rents due by the husband for his occupancy and for the amounts collected by him from other tenants during the pendency of the former appeal.
The trial court adjudged the rental due by the husband, and cast an account crediting him with expenses for repairs, utilities and maintenance. The testimony for either party was documented with proper receipts or vouchers, and we are unable to say that the chancellor was without reason in resolving the mutual accounts, with a net credit in appellant's favor of $78.84.
The trial court exonerated the sureties from liability for mesne rents. We think this was error. The supersedeas bond which they executed was conditioned to "satisfy the decree complained of and also such final decree as may be made in the cause." It was by its stay of appellant's possession of the property that the husband was enabled to occupy same. Such occupancy, adjudged by the decree in the instant case to be of the value of $180, was made possible through the undertaking of the sureties. Had we adjudged such liability in the former case, it would be clear that the husband and the sureties would have been liable therefor. Such liability is made statutory in a case of ejectment involving a stay of possession by Code 1942, Section 1165. While the present suit is not in ejectment, and the supersedeas bond is in conformity with the general statute, Section 1163, it furnishes an analogy which brings into play the same considerations and holds the appellant and his sureties to a liability for the avails made possible by the supersedeas bond. Compare Seacord v. Morgan, [*] 42 N.Y. 636, 640, 3 Keyes 636, 640, where it is stated: "The object of the undertaking is to procure an absolute stay of execution and of all proceedings on the judgment, and such is its effect. (Secs. 335, 339.) The motive for requiring the undertaking was to secure to the plaintiff the fruits of the recovery, in case it should be determined that the allegations of error were unfounded. As the plaintiff is, by the stay of execution, deprived of the immediate resort to the property of the judgment debtor, which the law would otherwise give him, and as his title to the amount adjudged in his favor is prima facie established, it was the policy of the law that he should have security to indemnify him against the possible contingency of the delay."
The decree is affirmed as to the amount found due, but decree will be entered here also against the sureties in such amount with interest and costs.
Affirmed in part, reversed in part and decree here.