Leathers v. Fred O. Howe & Co.

Reed, J.,

delivered the opinion of the court.

This case originated in a justice of the peace court. Judgment was rendered there against the defendant. He appealed and gave bond with two sureties. In the circuit court, by agreement between the attorney for plaintiff and attorney for defendant, the name of one of the sureties on. the bond was erased and. judgment was entered against the principal and the remaining surety. Execution was issued on this judgment, and levy was made on the property of the surety against whom judgment was rendered. He obtained an injunction from the chancery court, restraining further proceeding’s under the execution. Upon hearing, this injunction was made perpetual, the court deciding that-the judgment was void as to the surety.

At a term of the circuit court subsequent to that at which the judgment was rendered in the case appealed, a motion was made by plaintiff to set aside, vacate, and annul the judgment rendered against the principal and the one surety, and reinstate the cause for trial. This motion was sustained. Thereupon the cause was again brought on for hearing, and judgment was rendered against the defendant and the two sureties on his appeal bond. From this judgment, this appeal was prosecuted.

We find in section 86 of the Code of 1906, providing for-trial of cases on appeal from a justice of the peace to the circuit court, the following provision:

“And any judgment against an appellant shall be rendered against the principal and his sureties jointly.”

There is in this a clear requirement of the statute that, when a judgment, on a trial.of a case on appeal to the circuit court from a justice of the peace, is against the party appealing, it shall be rendered against him and those who are on his appeal bond as sureties jointly. This was not done upon the first hearing of this case in the circuit court. The bond which was approved by the justice of the peace, and which brought the case by appeal into the circuit court, had on it two sureties, and judgment was taken only against one surety. The judgment then rendered was in violation of this requirement of the statute, and was void. It was therefore proper for the court to set the judgment aside and reinstate the case for hearing. This being done, and the judgment again going against appellant, principal in the bond and defendant in the justice of the peace court, such judgment was required by the statute to be rendered against appellant as principal and his sureties on his appeal bond jointly.

Affirmed.