
    Wm. Park et al. vs. J. Knox Walker.
    S. Motion. Against representative of deceased surety. Act 1836, ch. 19, §6. The remedy by motion against an officer and his sureties as given by the act of 1835, eh. 19, §6, does not embrace the • administrator or executor of a deceased surety.
    
      2'. Practice. In the súfreme court. Act 1809, eh. 49, § 1. The supreme court in reversing an erroneous judgment, rendered upon a proper verdict by a jury — or upon facts found by the court below — wilt render sucli judgment as the court below should have given. Thus,, where the court below, upon a motion against a sheriff and his sureties and the representatives of deceased sureties, gave judgment against the representative of a deceased surety also, the supreme court will,, in reversing, as to the latter,, render judgment also against the former and his surviving sureties.
    PROM SHELBY.
    This was a motion made in the common law court of Memphis, against W. D. Gilmore, sheriff of Shelby county and Wm. Park and others, his sureties, and James Eice, adm’r. of Thomas Eice, another surety, deceased, and the representative of another deceased surety, for the failure of said sheriff to make due and proper return of an execution. The case was heard before Caruthers, judge, at the July term, 1854, of said court, who rendered judgment against all, including the representatives of the deceased sureties. Prom this judgment the defendants, Park, Eice and others prosecuted a writ of error to this court.
    Edwin M. Yerger, for the plaintiffs in error,
    said:
    The first question in this record is, can a judgment by motion be taken against an administrator or executor?
    This has been definitely settled by the supreme court in the case of The State vs. Deberry, 9 Humph., Eep., 605.
    Judge Green in his opinion says: “ The act of 1833, cb. 43, authorizes judgment by motion against the sheriff and Ms securities. It does not, by its express provisions extend to the executor or administrator of the sheriff, and we do not think it shouM be so extended by construction. For a default of the sheriff, it is much more appropriate to proceed against his executor or administrator upon the bond, by a common law action, in which the plea of fully administered might be put in and the issue tried by a jury. We do not think, therefore, that the legislature intended to extend the remedy by motion to the executor or administrator.”
    There is no difference between the case of securities for a sheriff, and a sheriff. The acts of assembly in no instance give the remedy by motion against any administrator or executor; and very wisely has the legislature abstained from so doing. The very necessity of trying an issue of fully admimstered in order to protect an administrator in Ms private property, shows the justice and propriety of preventing such remedy by motion. Here is a judgment by motion against an administrator. Say that it is proper, and legal, and an execution issues and is returned “ no property ” as againstj the estate. What is to prevent the collection of the debt out of the private property of the administrator or executor? There are many other reasons why this summary proceeding should not be given. But I consider the case of The State vs. Deberry, as settling the question.
    But if judgment by motion can be taken against an administrator under any circumstances, clearly it cannot without notice. The court would undoubtedly hold, that he was entitled to notice, to protect himself and his estate, and the trust in his hands.
    Again: The judgment does not show that six months had elapsed after the qualification of the ad-ministratrix, Ann Butler, and James Rice, administrator. The act of 1829, ch. 57, §§ 1 and 2, provides that executors and administrators shall have this time to arrange and settle estates, without being liable to suit or costs, and any suit commenced within that time shall be abated or dismissed- The court would undoubtedly require the judgment on motion against an administrator or executor, if it can be taken at all, to show on its face, that the period of six months had elapsed after his qualification before it would subject him to suit.
    I entertain no doubt that this judgment is void against the administrator and administratrix as aforesaid.
    "What is the effect as " to the other parties? In 4 Humph., 273, the court hold,' that a judgment is an entire thing, and if there are several defendants, and the judgment is void as to one of them, it is void as to all; it cannot be good in part, and bad in part.
    This case is recognized and adopted in 10 Humph., 252. In the last named case, the court held, that when a judgment was not void as to any, but merely erroneous as to some and irregular, it would be reversed in toto. ® So if this judgment is void as to the ad-ministratix and administrator, or merely erroneous and irregular as to them, it will be reversed in toto.
    
    A. Weight, for the defendant in error
    argued:
    1. The judgment was rightly taken against the sheriff and all Ms living securities with the personal representatives of the deceased sureties. 2 Humph., 136-7. 8 Yerg., 153. 3 Humph., 415. 4 Humph., •505. 9 Humph., .605. 11 Humph., 304. Cook, 393. 7 Humph., 128.
    2. If not, it' is only error as to the personal representatives of the deceased sureties, and will warrant a reversal only as to them, and is no error as to the sheriff or his surviving sureties. 3 Humph., 419. 8 J. R., Ill, 559, 560, 565. 4 Humph., 505. . Acts 1844, ch. 103, § 14, (Nich. supp,, 263.) 2 Swan, 445. 2 Meigs Dig., 632. Cook, 393. 4 Humph., 273. 9 Humph., 98. 10 Humph., 251.
    3. The extent of the recovery is the debt, interest and costs, and 12£ per cent, damages on. the debt and interest, counted down to the judgment on motion. Acts 1803, ch. 18, §1, (O. & N. Rev., 294), 1813, ch. 109, §1, (C. & N. Rev., 296), 1835, ch. 19, § 6, (N. & C. Rev., 300), 1838, ch. 190, § 2, (Nich. Supp., 281). 2 Humph., 574. 6 Humph., 24. 10 Humph., 318. 1 Swan, 112.
    4. The common law and chancery court have the same power to render judgment by motion as the circuit courts. Acts 1849-50, page 84, §§ 2, 5 and 10 in point, p. 85, 86.
    5. If the recovery should be found to be for too much in any case, can we not enter a remittitur f 2 Tom. Law Die., 290. 8 Humph., 530. 6 Yerg., 332.
    6. If error exist at common law, is it not cured by the late law of amendments? 11 Humph., 304. Acts 1851-2, §§ 1, 4, 5,° 7, page 219.
    7. Must not the supreme court give such judgment on the facts as tbe common law court should have done?' If it was wrong to include the personal representatives of Bice and Butler, still it was right to render judgment against the sheriff and his surviving sureties. 2 Humph., 393, 136-7. 3 Humph., 419, 431. 8 Johns. Bep., 565. 8 Humph., 534. 6 Yerg., 332. 1 Meigs Dig., 466.
    8. If it be objected that the judgments attempt to recite the bond, but do not give all of it, or the form as laid down in the act of 1777, and that it may not in all its parts be a statutory bond; I answer, it is enough to give such parts of the condition as meet the case and show the defendant’s liability; and because other parts of the condition are not given, it is not to be inferred they do not exist. 3 Humph., 373, 374. , Besides it is cured by act of 1844, ch. 103, §§ 11, 14. 2 Swan, 445. Acts of 1851-2, § 9, p. 422.
    9. If it be objected, the judgments fail to show a non-return of the fi. fa's. I answer, it is enough to aver the sheriff failed to “ make a due and proper return” of the fi. fa’s.. This 'is in accordance with the act of 1835, ch. 19, § 6, (C. & N. Bev. 300). But the record in fact shows there never was in fact any return. Cook’s Bep„ 268. 3 Humph., 89. The case in 3 Humph, is not on the act of 1835, and the facts recited are different. 1 Yerg., 148-9.
    10. The motion valid. 11 Humph. 303, 189.
    As to the question that the judgment ought to show six months had elapsed as to administrators of Butler and Bice. Vide, 11 Humph., 305. 1 Humph., 471. 8 Yerg., 154.
   McEjNNey, J.,

delivered the opinion of the court.

This was a judgment rendered in the common law and chancery court of the city of Memphis, on motion, for $831 against William D. Gilmore, late sheriff of Shelby county, and the surviving securities in his official bond, together with the personal representatives of two of the sureties who were dead before the institution of this proceeding, for the failure of said sheriff to make due and proper return of an execution. To reverse this judgment, the surviving sureties, and the representatives of the deceased co-sureties, have jointly prosecuted a writ of error to this court.

The first question is, does this summary remedy apply to the executor or administrator of a deceased surety ? We think not. By the terms of the act of 1835, ch. 19, § 6, the remedy by motion is given against the “officer and Ms securities.” This is a mode of proceeding unknown to the common law, and is to bo strictly construed. No latitude of construction is admissible, so as to .extend the remedy beyond the express provision of the statute, to cases apparently falling within the reason of the law. The remedy is not given by the statute against the personal representative of the deceased sheriff, or surety; and upon no sound principle can it be so applied. Obvious considerations growing out of the relations, rights and duties of the personal representative, forbid such a construction. But it is needless to reason upon this point. We have held that this remedy did not extend to the executor or administrator of the deceaséd sheriff himself. 9 Humph., 605, and- for the same reasons, we now hold, that it does not apply to the executor or administrator of a deceased surety. The judgment upon this ground is erroneous in law. 10 Humph., 252; and being so, the next question is, what ought to be the judgment of this -court in the case? Should the judgment be reversed, and the case be remanded to the court below for the proper judgment, as insisted on behalf of the plaintiff in error? The act of 1809, ch. 49, § 27, provides, “ that when any judgment, decision or decree of the circuit court shall be reversed, or affirmed in the court of errors and appeals, it shall be the duty of the said court to pass such judgment, decision, or decree, as the circuit court should have passed — except where the damages to be assessed, or matter to be decreed, are uncertain; in which case, the said court shall remand the cause for final hearing.”

It is assumed for the plaintiff in error, that the effect of the judgment of reversal here, is to annul and make void, to every purpose, the proceeding and judgment of the circuit court in the case; and, consequently, that we cannot adopt the finding of the court upon the facts, as set forth in the record, as the foundation upon which to render a judgment here; and that as there is no bill of exceptions setting forth the evidence upon which the finding of the circuit court was based, we have nothing before us upon which to ground a judgment.

This reasoning we do not assent to. The ground of the reversal is simply an error in law, in rendering judgment against the representatives of the deceased sureties. There is no objection to the proceedings in the court below, so far as respects the matters of fact constituting the grounds of the judgment as against the sheriff and surviving sureties. The facts requisite, as the basis of a proper judgment against them, are properly and hilly found by the court, and set forth in the record before us. What effect, then, has the reversal of the judgment, upon the matter of law as to the representatives of the deceased sureties, upon the finding of the facts? None whatever, we think; If this were a case where, by law, a jury must pass up-oít the facts, the case would be entirely different. Rut in this case by the statute, the judge determines the matters of fact as well as the law; and his finding of the facts, which is as conclusive as the finding of a jury, is not in the least degree impugned, in any respect, by the judgment of reversal in the case, upon the ground of a mere error in law. The case, then, is in no respect different, in principle, from that of an erroneous judgment, in law, upon a proper verdict found by a jury on the facts of the case; and therefore, by the express requirements of the act of 1809, this court, upon reversing, must render the proper judgment which ought to have been rendered in the court below.

The judgment will be reversed, and judgment rendered here against the surviving sureties — the sheriff not being a party to the Writ of error.

TotteN, J.,

dissented on the last point. He was of opinion that the cause ought to be remanded for proceeding de novo in the circuit court; and that this court has no power, as the case appears before us, to render judgment for the plaintiff in the motion.  