Gotelli v. Fountain , 127 Miss. 577 ( 1921 )

Cook, J.,

delivered the opinion of the court.

Appellants exhibited their bill of complaint in the chancery court of Harrison county, seeking to enjoin the sále of personal property, levied on by virtue of an execution issued upon a judgment rendered in the justice court, and from a decree dissolving the injunction and awarding-damages this appeal is prosecuted.

We think the action of the court in dissolving- the injunction and awarding- judgment on the injunction bond for attorney’s fees was correct. However, the decree ordered the complainants to redeliver the property to the constable within titeen days from the date of the decree, and in default thereof awarded judgment on the injunction bond for the full amount of the justice court judgment, and, in this respect, we think the decree is erroneous.

It is stated by counsel that this decree was drawn under the provisions of section 617, Code of 1906 (Hemingway’s Code, section 377), and it is manifest from the record that it is drawn under that section or under section 616, Code of 1906 (Hemingway’s Code, section 376). These sections provide that when an injunction shall be granted to stay the sale of personal property the chancellor may order the property restored to the complainant on his giving-bond, in double the value of the property, conditioned under section 616, Code of 1906- to redeliver the property to the sheriff in case the injunction shall be dissolved, and conditioned, under section 617, for the return of the property to the person surrendering it, if the injunction shall be dissolved. These sections further provide that this forthcoming bond shall have the force and effect of a judgment against the obligors, and that execution may be issued thereon if the property is not, within fifteen days, redelivered in accordance with the condition of the bond.

There is nothing in this record to show that the chancellor ordered the property restored to complainants, or that it was in fact so restored, and no bond for the redelivery of the property was executed, and there is nothing in either section 616, Code of 1906 (Hemingway’s Code, section 376), or section 617, Code of 1906 (Hemingway’s Code, section 377), ivhich authorizes a personal decree against the obligors on the injunction bond for the amount of the judgment or debt sought to be enjoined. Neither can this decree against the obligors on the injunction bond be sustained under section 622, Code of 1906 (Hemingway’s Code, section 382). Steadman v. Butler, 95 Miss. 695, 49 So. 614; Courtney Bros. v. John Deere Plow Co., 122 Miss. 232, 84 So. 185.

The decree of the chancellor will therefore be reversed in so far as it rendered judgment on the injunction bond for the amount of the debt sought to be enjoined, and in all other respects it is affirmed, and proper decree will be entered here.

Affirmed in part, and reversed in part.