Opinion
No. 29643.
December 7, 1931.
1. EXECUTION.
Validity of judgment cannot be attacked by motion to quash execution unless judgment is void.
2. EXECUTION.
Motion to quash execution cannot be used to perform offices of an appeal.
3. EXECUTION.
Execution which is substantially excessive in amount is subject to timely motion to quash.
4. EXECUTION.
Where judgment against principal was for one thousand eight hundred twenty-nine dollars, whereas judgment against surety was for approximately one thousand two hundred eighty-three dollars, motion by surety company to quash general execution issued against both for full sum of one thousand eight hundred twenty-nine dollars held properly sustained.
ON SUGGESTION OF ERROR. (Division B. Feb. 1, 1932.) [139 So. 317. No. 29643.]1. JUDGMENT.
Provision of judgment sustaining motion to quash execution, in effect modifying judgment on which execution was issued, should be treated as surplusage.
2. JUDGMENT.
To modify final judgment, proceedings must be had directed to that end under statute or some direct proceeding to correct judgment.
APPEAL from circuit court of Hinds county. HON.W.H. POTTER, Judge.
W.H. Cox, of Jackson, for appellant.
The court below erred in holding that the surety might deliver to appellant the excavator in settlement of its money demand fixed against said surety in the original judgment.
If the defendants have given bond for the property (that is to say as provided by the chapter of attachment against debtors) and the judgment and costs be less than the assessed value thereof (as is the case of the excavator here, then the measure of liability on said bond is that), judgment shall be rendered against the defendant and the sureties on its bond for the debt and costs.
Sec. 2607, Hem. Miss. Code, 1927; Flanagan v. King Peoples Auto Co., 132 Miss. 95.
It is not apparent from this record that W.W. Capers, claimant, was a proper party to, or had any interest under, the motion to quash appellant's execution.
The hazard which the surety incurred by the execution of said bond was, that the court below, as it did, would fix the value of said excavator at a greater amount than the judgment against it, instead of at a lessor amount than the judgment against it. That is to say that the defendant's surety incurred the legal hazard and responsibility of having the court fix a money demand against it for such property embraced in said bond as was found to be of greater value than the judgment and costs to which it was subjectable.
Section 164, Hemingway's Code of 1927, has no application to this case.
Appellant submits that this is a move of the principal defendant and debtor of the appellant, that is, S.A. Redding Company, through and in the name of his surety, U.S.F. G. Company to escape the just effects of the obligation imposed on him by the original judgment of the court. We are not undertaking to make the surety buy anything. We don't know if this judgment were enforced as written whether or not the surety would buy anything. The surety in this case carved out its own destiny in this case by voluntarily assuming the responsibility imposed on it by section 2607 and cannot be heard to complain that the enforcement thereof would be unwise, as a policy for the Legislature to have enacted, or unjust as a burden which he contracted with the principal defendant to and did assume.
The lower court entered the only judgment it could have rendered under section 2607 of said code on the original trial (R28). On the motion to quash said execution, the court, in effect, reversed its former order and entered another and different order which was not authorized by the statute.
The appellee's motion to quash was and is a collateral attack on the original judgment.
We urge that the court review and reconsider its former opinion, and that on a further consideration thereof, that the court will affirm the judgment of the lower court in so far as it sustained the motion to quash appellant's execution in the sum of one thousand eight hundred twenty-nine dollars against said surety, but that it reverses said judgment of the lower court in so far as it restrains the issuance and service of other and further proper process on said original judgment and that judgment be entered here permitting this appellant to have further proper process on said original judgment against said surety, as directed in the original judgment.
Chambers Trenholm, of Jackson, for appellees.
There can be no contention but that the bond given by the defendant was a forthcoming bond. It will become more apparent upon considering that none of the sections dealing with the purchase-money lien and its enforcement, sections 2605, 2606 and 2607 of Hemingway's Code of 1927 (to which all our reference are made, the Code of 1930 not being in force when this case arose) define what kind of bond may be given, other than that the officer shall deal with the property "as in the case of attachment for debt," and that "the defendant may replevy the property as in the case of attachment against debtors." (Sec. 2606.)
Section 3080 of the Code of 1906 provides that, where a suit is brought by the seller of personal property, to subject same to the debt for the purchase money thereof, the property shall be dealt with "as in the case of an attachment for debt," etc.
Quillan v. Paine, 94 Miss. 696, 47 So. 898 (1909).
In all cases the judgment against the sureties of the defendant shall be satisfied and discharged by the delivery to the sheriff of the property replevied within ten days after execution on such judgment shall have come to his hands.
Sec. 164, Hemingway's Code of 1927.
If the value of the property exceeds the amount of the debt, judgment against the surety is limited to the amount of the debt, but if the value of the property is less than the amount of the debt, judgment against the surety is limited to the value of the property. In other words, the liability of the surety can in no event exceed the value of the property which he has undertaken to have forthcoming to answer the judgment. And in any event, the liability of the surety is discharged by having the property forthcoming.
In construing the effect of the several statutes, they must be considered together, and effect given to each so as to harmonize with the others, and evolve from the whole the true legislative intent.
Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907; Barrett v. School District, 123 Miss. 370, 85 So. 125; Jackson County v. Worth, 127 Miss. 813, 90 So. 588; Peets v. Martin, 135 Miss. 720, 101 So. 78; Board of Supervisors v. Meridian, 114 So. 803.
In construing a statute the object is to get at its spirit and meaning, its design and scope. And that construction will be justified which evidently embraces the meaning and carries out the object of the law, although it be against the letter and grammatical construction of the act.
Dixon v. Doe, 1 S. M. 70; Ingram v. Speed, 30 Miss. 410; Reed v. Manning, 30 Miss. 308; Board of Education v. Railroad, 72 Miss. 236, 16 So. 489; Logan v. State, 53 Miss. 431.
And an unjust and unwise purpose will not be imputed to the Legislature when a reasonable construction will save the statute from such imputation.
Huber v. Freret, 138 Miss. 238, 103 So. 3.
Measured by these rules, we submit that to place upon section 2607 of Hemingway's Code of 1927 the construction urged by appellant would be to change the spirit and meaning of the statutes dealing with a forthcoming bond, and alter their design and scope, but that to place upon it, in conjunction with sections 143 and 164 the construction placed upon it by the learned court below would be to embrace the meaning and carry out the object of the law, although it be against the letter of the act. That to place upon this section the construction asked by appellant would be to impute to the Legislature an unjust and unwise purpose, whereas the construction asked by appellee, and adopted by the trial court, is a reasonable one, and will save the statute from such imputation.
Even should it now be held that a surety upon a forthcoming bond in purchase money lien cases is not entitled to the protection of the chapter on attachments, such a holding should not be applied to the surety in this case.
State v. Longino, 109 Miss. 125, 67 So. 902; Odom v. State, 132 Miss. 3, 95 So. 253; Bank v. Posey, 130 Miss. 825, 95 So. 134.
W.W. Capers, trustee, claimant, was adjudged to have a superior claim to that of appellant, which existed at the time of the making of the forthcoming bond, to an amount more than two and a half times the adjudicated value of the property, to which claim the lien adjudged in favor of appellant was subordinated. The obligation of the surety was to have the property forthcoming subject to the deed of trust to Capers, trustee, yet appellant would have the surety pay his claim ahead of that deed of trust.
The judgment of the court below preventing appellant from further proceedings to collect from the surety, without reference to the property, was correct.
The claimant sought jointly with the surety the relief not only of a quashing of the existing execution, but stay of further like execution, all of which was granted. Appellant does not complain thereof, except in so far as it affected his right to insist upon a payment of money by the surety, and he fails to point out any error in the granting of the relief to the claimant, nor as to how the joining of claimant in the motion adversely affected his contention as to the construction of the statute.
An execution having issued, the surety promptly tendered the property to the sheriff, which tender was refused by him at the direction of appellant. In other words, the appellant refused to abide by the judgment of the court which condemned the property to be sold, and insisted that the sheriff collect in money from the surety. The surety was not in default either under the terms of its bond or the judgment of the court for a sale of the property, because it offered to produce the property at the proper time. The sheriff insisting on payment of the 1057/1507 of the judgment, and refusing to take the property and sell it in compliance with the judgment, what could the surety do? Appeal, even if the time had not passed, would have availed nothing, as hereinabove pointed out. Injunction might or might not have been proper. But clearly the court which rendered the judgment could control its proper enforcement, and the method by which that could be accomplished was a motion to quash the execution on the ground that it was being unlawfully enforced. Therefore, that was the remedy resorted to, and we respectfully submit it was the proper one.
It is an inherent power of a court to control its process.
Hopton v. Swan, 50 Miss. 545.
And courts should see that their process is not abused.
Harrington v. O'Reilly, 9 S. M. (Miss.) 216.
Motion to quash is of course the only manner in which to bring before the court a question of alleged abuse of process.
Appellant filed his suit, against appellee Redding, to enforce the statutory purchase-money lien on certain personal property not here necessary to describe. Upon the issuance of the writ for the seizure thereof, said appellee gave a forthcoming bond with appellee surety company as surety on said bond. The case was tried and the court gave final judgment against appellee Redding for the full sum of the debt, with interest and attorney's fees in the total amount of one thousand eight hundred twenty-nine dollars, and a personal judgment was rendered against the appellee surety company for 1057/1507 of said one thousand eight hundred twenty-nine dollars, which when calculated is approximately one thousand two hundred eighty-three dollars. This judgment was entered at the February, 1930, term of the court.
Thereafter on the 14th day of November, 1930, a general execution was issued against both said appellees for the full sum of one thousand eight hundred twenty-nine dollars, although, as stated, the judgment against appellee surety company was only for one thousand two hundred eighty-three dollars. Appellee surety company thereupon moved to quash said execution, which motion was sustained by the court, from which action an appeal has been taken to this court.
The entire of the argument made here by appellee is that the court in rendering its final judgment at the February, 1930, term was in error in entering any personal judgment against appellee surety company for any part of the debt sued for; that the bond given by the surety company was a forthcoming and not a payment bond; and that the only valid judgment which could be rendered against said surety was one for the forthcoming of the property, and for a personal judgment only in default of the delivery up of the property. The property was tendered after the rendition of the judgment, as shown by the agreed statement of facts, and the tender was refused.
We have no power, in the state of this record, to consider the questions presented by appellees. Unless the judgment upon which an execution has been issued is null and void, it is not competent to attack the validity of said judgment by the means of a motion to quash the execution. Upon such a motion the original judgment is final whatever may be the asserted errors or irregularities, or defects therein, save as to those which render the judgment altogether void. A motion to quash cannot be used to perform the offices of an appeal. 23 C.J. 537, and authorities there noted.
The motion by the surety company to quash was properly sustained, however, for this reason: As stated, the execution against the appellee surety company was for the entire amount of the judgment against Redding or for the entire sum of one thousand eight hundred twenty-nine dollars; whereas, the judgment against the surety company was for 1057/1507 of that amount, or approximately one thousand two hundred eighty-three dollars. An execution must accord substantially with the judgment on which it is founded, and an execution which is substantially excessive in amount against a party is subject to a timely motion by that party to quash. 23 C.J. 538, 539. It is true that sometimes, on such a motion, the court may permit amendments of the execution; but that was not here requested of the court and therefore we are not called upon to express an opinion whether this was an amendable execution. Nor do we express any opinion in what manner the proper alias process is to be issued under the judgment in this case, that matter not being before us. We decide only the two questions above stated: First, that a motion to quash is not available to attack the validity of the final judgment upon which the execution was issued, unless the judgment be null and void; and, second, that as a matter of essential form the execution in this case, so far as concerns the said surety company, was not a proper execution. We do not decide that execution may not issue under said judgment, and we decide nothing as to what form any alias process shall take.
Affirmed.
ON SUGGESTION OF ERROR.
The appellant filed a suggestion of error, and the appellee also filed one. The appellant challenges the closing part of the judgment on the motion to quash, which provides: "That no further execution be issued out of this court, upon said judgment against said United States Fidelity Guaranty Company for said 1057/1507 of said judgment and costs, adjudged against it on its forthcoming bond for said excavator, so long as it appears that no benefit could be had by the plaintiff through the sale of said excavator under said judgment."
It is contended that, under this provision of the judgment, the learned court below had modified the judgment upon which the execution was issued after it had become final, and, if allowed to stand, in effect, it would modify said judgment. It is also contended, on behalf of the plaintiffs in execution, that the judgment is correct, in that the court had full control over its process to prevent injustice.
We think this portion of the judgment was beyond the power of the court to make upon a motion to quash, and that it should be treated as surplusage.
In order to modify an original judgment after it has become final, proceedings must be had directed to that end, either under the statute or in some direct proceeding seeking to correct the judgment, if that may be had, as to which we express no opinion.
The affirmance of the judgment was correct, but the part quoted above is not properly a part thereof, and will not prevent taking any appropriate further action.
Suggestion of error overruled.