Ott v. McElveen

Cook, J.,

delivered the opinion of the court.

Appellee sued out an attachment against the estate of' appellant, returnable to the court of a justice of the peace, and Ed, T. Wall was the surety on the attachment, bond. The penalty of the bond was eighty-five dollars.. Before the defendant in the attachment proceedings, who is appellant here, could traverse the grounds of attachment, appellee voluntarily dismissed his attachment. Appellant then entered suit in the justice’s court against appellee and Wall, the surety on the bond, claiming that the attachment was maliciously sued out, with intent to injure the reputation of the defendant. A trial was had, which resulted in appellant securing a judgment for one hundred and ninety-seven dollars against the plaintiff in attachment, McElveen, and Ott, the surety on the bond. McElveen and.Ott let the day for appeal slip by, and the case was brought to the circuit court by certiorari for errors of law apparent upon the face of the record.

In the meantime Wall departed this life, and the suit was revived in the name of his administrator. The circuit court reversed the judgment of the justice of the peace, because it was error to render judgment against Wall, the surety on the bond, for more than the amount of the penalty of the bond; and, as the judgment of the justice of the peace was indivisible and in solido, the court held that he must reverse as to both defendants. Whereupon plaintiff there, who is appellant here, dismissed Ms case against Wall, and made, a motion that the judgment be affirmed as to McElveen; there being no errors of law apparent upon the face of the record so far as he was concerned. This motion was overruled, a jury was impaneled, and the case was tried de novo. The jury rendered a verdict in favor of defendant, and the whole matter is here for review.

The only question for us to decide is: Did the circuit court err in deciding that, the judgment of the justice court being erroneous as to Wall, it followed that it was also erroneous as to McElveen? In other words, was the judgment inseparable, and, as the court below put it, in solido¶ Should the trial court have affirmed the judgment of the justice of the peace rendered against McElveen? The justice of the peace had jurisdiction of the case, and the judgment rendered against appellee was responsive to the pleadings. We can see no reason why the plaintiff in the justice’s court could not have there dismissed Ms case against the surety on the bond and proceeded against the principal. The surety was liable (only because he had signed the attachment bond, and while it is true judgment could not have been rendered :against Mm after the suit had been dismissed against ■the principal, non constat that judgment was not proper .•against the principal because the case is dismissed as to Ms surety.

The judgment rendered by the justice of the peace was divisible, and when appellant dismissed his ease against the surety a perfectly valid judgment still remained against appellee.

Reversed and remanded.