McKinney v. Willis ( 1886 )

Cooper, C. J.,

delivered tbe opinion of the court.

If the circuit court erred in permitting Willis, the landlord, to amend his affidavit on which his distress warrant had been issued, or in rendering judgment on the award made by the referee against the complainants, who were sureties on the replevin bond given by the tenants, they should have interposed their objection in that court when judgment was about to be entered against them, and appealed from the judgment. If there is error now there was error then. The error, if it exists, is apparent on the face of that record, or might have been made to appear by the record which they might have made. The remedy was plain, adequate, and complete in the court having jurisdiction of the cause, and the complainants, having failed to avail themselves of the opportunity then afforded them, cannot now resort to equity for relief. Thomas v. Phillips, 4 S. & M. 358 ; Jones v. Coker, 53 Miss. 195.

If one of the referees to whom the cause was referred was subject to exception because he was related to the landlord, Willis, it is an exception which the tenants, acting in good faith, had authority to waive. . If, as is suggested by the bill - in this case, the tenants did desire to set aside the award because of this fact, and took action in the circuit court to vacate it, and the court over their objection confirmed the award, then the judgment, if erroneous, should have been appealed from by the tenants. By becoming sureties on the replevin bond the complainants became bound to restore the property replevied to answer any judgment obtained in due course of law against their principals. A judgment, though erroneous, if not appealed from and reversed, is obligatory on their principals, and because it is, is binding on the sureties. They voluntarily made themselves parties to the proceeding and cannot be relieved either by a court of chancery, or by direct appeal from a judgment erroneous merely against their principals. The Hollingworths do not join in the bill to attack the judgment for matters coming to their knowledge after the rendition of the judgment at law. If they are contént with the result they are bound by the judgment, and because they are bound so also are their sureties. Ammon v. Whitehead, 31 Miss. 99 ; Atkinson v. Foxworth, 53 Miss. 733.

The deoree is affirmed.