Sparks v. Hopsen ( 1903 )

OalhooN, J.,

delivered the opinion of the court.

Sparks was surety on the replevin bond for $100, given by the defendants in a replevin suit, in a court of a justice of the peace, for a horse. Defendants won in that court, which adjudged that they retain the horse. The bond is conditioned, as in the form set out in Code, § 3716, to be void if the horse should be produced before the court to satisfy its judgment, but is silent as to costs. But the plaintiff appealed, with superse-deas, to the circuit court, and won there, and the judgment was that the horse be restored to him, and that defendant and Sparks, his surety on the replevin bond, pay $214.75, the costs; Sparks, however, to.be exonerated on payment of $100, the penalty of his bond, the horse having been delivered to plaintiff.

It is urged here by Sparks that he is bound only, by the letter of his bond, to have the horse forthcoming, which was done, and that it was error to hold him for any costs at all. In Phillips v. Cooper, 59 Miss., 18, this court construed sections 1530 and 1535 of the Code of 1871, in a case where the property had not been produced, and held the surety liable for costs; and, further, said he would also be liable if the property had been restored, because section 1535 of that code gave the “successful party” a distringas for the property and “a fieri facias’ for damages and costs.” Now the requirement of the condition of the bond of defendant, by § 1530 of the Code of 1871, is identical with that of § 3715 of the Code of 1892, that the property “shall be forthcoming to satisfy the judgment of the court.” Section 3729 of the Code of 1892, compared with § 1535 of the Code of 1871, is substantially the same, both allowing recovery against the losing party and his sureties for restoration of the property and for “damages and costs.” The fact that the form of the bond for defendant, set out in § 3716, Code 1892, does not mention costs, cannot alter the reasoning or the conclusion in Phillips v. Cooper, supra. The learned codifiers of this code cite this case as applicable in their footnote to§ 3715.

Affirmed.