Tyler v. Davis , 63 Miss. 345 ( 1885 )

Coopee, C. J.,

delivered the opinion of the court.

The appellant sued out a writ of replevin against Davis and wife, who entered into a joint bond with sureties for the forthcoming of the property to answer such judgment as should be awarded in the cause on the trial. The plaintiff dismissed his action as to the wife and proceeded to judgment against the husband only. When judgment was about to be entered on the bond, objection was made for the sureties that they were not liable to judgment, since the plaintiff had dismissed one of the defendants from the suit. The court refused to enter judgment against the sureties, and from that action this appeal is taken.

We approve the action of the court below. The sureties were entitled to the protection which was afforded them by the fact that Mrs. Davis was a party to the suit, and presumably contending that she, and not the plaintiff, was entitled to the property in controversy. By his own act the plaintiff thrust Mrs. Davis from the suit. She had no right to insist that the suit should be continued as to her against the wishes of the plaintiff, and since the effect of dismissing as to her was to relieve her of liability on the bond as principal, it follows as a consequence that the sureties are also discharged. The contract of the sureties was to respond to any judgment which might be entered in the suit to which Mrs. Davis and her husband were parties. They were connected with the suit by their connection with both parties as principals on the bond, and though a judgment has been entered against Davis, there has been none against Mrs. Davis nor any in any suit to which she is a party within'the condition of the bond. Judgment affirmed.