Mississippi Supreme Court, 1931

King v. E. L. Rice & Co.

Mississippi Supreme Court · Decided March 9, 1931 · Ethridge

132 So. 747; 161 Miss. 250; 1931 Miss. LEXIS 236 (Southern Reporter)

Counsel

J.O. Day, of Tutwiler, for appellant. The purpose of the appeal bond is to bind the sureties for the payment of such valid judgment as the appellate court may render against the principal obligor. Certainly the purpose could never be to make the surety more liable than the principal. Goyer Company v. Jones, 79 Miss. 253 , 30 So. 651. If one is bound as surety for another to pay any judgment that may be rendered in a specified action, if the judgment is defeated by the bankruptcy of the person for whom the obligation is assumed the surety will be released. Wolf v. Stix, 99 U.S. 1 , 25 L.Ed. 309; Coll. Bankr. (3 Ed.), pp. 180-184. The provision in the Bankruptcy Act, section 16, relating to co-debtors with, or guarantor or in any manner a surety for, a bankrupt, "refers to sureties on the original debt and not to a surety on the appeal bond of the bankrupt given in an action commenced against him prior to the bankruptcy proceedings." Brown, Webb Company v. Edwards Rose Company, 98 So. 559 ; Bailey v. Reeves, 102 Miss. 438 , 59 So. 802.

Opinion of the Court

Ethridge, P. J.,

delivered the opinion of the court.

E. L. Bice & Company procured a judgment against A. L. King, from which judgment King prosecuted an appeal, with B. E. Lipe and Carl Lipe as sureties. Thereafter King was placed in involuntary bankruptcy, and on January 26, 1931, was discharged in the bankrupt court.

*252 When the case came on this docket on January 13, 1931, the appeal not having* been prosecuted by filing* briefs or making* argument, it was dismissed and judgment rendered against the sureties on the bond. The sureties now file a motion to set aside and vacate the judgment dismissing the appeal, setting up the bankruptcy and discharge as reasons therefor, and alleging that no valid judgment could be rendered against the sureties.

The motion must be overruled because, when King filed an appeal bond with supersedeas, the sureties became liable to pay the judgment appealed from, or such judgment as this court should render on the appeal. The discharge of the principal, King, does not relieve the sureties from their liability. The appellees could, no doubt, have recovered their judgment had no supersedeas appeal been allowed or taken.

The motion will be overruled.

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