Cheek v. Pugh , 19 Ark. 574 ( 1858 )

Mr. Chief Justice English

delivered the opinion of the Court.

This was an action of debt brought by Henry R. Pugh against Elijah Cheek, George W. Cheek, Gideon G. McGehee and James Gatlin, in the Crittenden Circuit Court.

The action was founded on an attachment replevin bond, executed (under sec. 13, chap. 17, p. 175 Dig.,) by one Southall as principal, and the defendants as securities, to procure the release of property attached by the sheriff in an attachment suit brought by the plaintiff, Pugh, against Southall, in the Critten-den Circuit Court.

The declaration set out the bond, which is conditioned as provided by the statute, and, by way of special breach, alleges in substance:

That after the execution and return of the bond, etc., and while the attachment suit was pending, the death of Southall was suggested, and the cause revived against his administrator, (Garrett,) etc. That afterwards, etc., the plaintiff, by the consideration and judgment of said Court, recovered against Garrett, as such administrator, the sum of etc., etc. That the judgment was erroneous in this, that by misprision of the clerk, in entering up the same, it appears to have been rendered against the defendants in this suit, (who were the sureties in the replevin bond,) and which plaintiff admits to be void as a recovery against them in said cause, etc. Then follows the usual averment of the non-payment of the bond.

The defendants demurred to the declaration, which being overruled, they craved oyer of the bond sued on and pleaded:

1.Payment.

2. Nul tiel record of the allegedjudgment in the attachment suit.

3. No such writ of attachment was ever issued.

4. Nul tiel record of the alleged suggestion of the death of Southall, and the revival of the attachment suit against his administrator.

To the 1st, 2d and 4th pleas, the plaintiff interposed replications in the usual form. To the 3d plea, he replied, that the defendants had admitted the issuance of the writ of attachment by the recitals of the bond, and were estopped to deny it. Issues were taken to all the replications, and, by consent of parties, all the issues were submitted to the Court, and finding and judgment in favor of the plaintiff. The defendants moved for a new trial, which the Court refused, and they excepted and appealed.

The evidence introduced upon the trial sustains the finding of the Court upon all the issues.

It is insisted by the counsel for the appellants that the judgment against them in the attachment suit being void as to them, was void also as to Southall. That it was a mere nullity as to them, there can be no doubt. They were not parties to the action. Pugh was the plaintiff, and Southall the defendant in the attachment suit. ' His property was seized under the writ, and in order to release it, he executed the bond sued on in this case, with the appellants as sureties. When judgment was finally rendered against his administrator, it was also, without authority of law, and perhaps by mistake of the clerk, rendered against the appellants, as securities in the reple-vin bond. There was no proceeding before the Court upon which the judgment against them could be based. But the judgment was not void as to the administrator of Southall, who was the only defendant in the suit. See Rhmbottom, d al. vs. Sadler ex., decided at the present term.

The judgment is affirmed.

Mr. Justice PIanly did not sit in this case.