
    George K. Morton, et al. vs. Stern Simmons, et al.
    When the high court of errors have rendered a judgment, either of affirmance of the judgment of the circuit court, or have rendered such judgment as the circuit court should have rendered, it is the duty of the clerk of the circuit court to issue an execution upon that judgment, on a certificate of the clerk of the supreme court of the rendition thereof.
    Where judgment has keen rendered, upon a forfeited forthcoming bond, and all the parties thereto but one prosecuted a writ of error, and that judgment is affirmed, and execution has issued upon the certificate thereof against the parities who joined in the writ of error, and the sureties in the writ of error bond, it is no objection to the execution, that the other party to the judgment on the forfeited forthcoming bond, who did not join in the writ of error, is no party to the judgment and execution thereon, from the high court of errors and appeals.
    In such case, the plaintiff in the first judgment would be entitled to an execution on the forfeited forthcoming bond, against the party who did not join in the writ of error.
    In error, from the Yalobusha circuit court.
    The facts in this case are as follows :
    Stern Simmons, as'the security of Thomas N. Waul, in a forthcoming bond, given upon an execution on a judgment in favor of the plaintiffs in error against Waul, sued out a writ of audita querela, to be discharged, as such security, from the plaintiffs’ judgment. The circuit court dismissed his writ, and he appealed to the high court, giving Henry D. Bridges, James N. Harper, and Thomas J. N. Bridges, as his sureties, in the supersedeas bond. The high -court of errors and appeals affirmed the judgment of the circuit court, with damages, against Stern Simmons and hjs sureties, in his supersedeas bond, and the clerk thereof certified the judgment to the court below. Execution issued on this judgment, against Stern Simmons, Henry D. Bridges, James N. Harper,' and Thomas J. N. Bridges. Stern Simmons, the principal, gave a forthcoming bond,, upon' the levy of Üús'ji. /a., with James N. Harper, and Thomas Simmons, sureties.
    
      A motion .was made in the coart below, to quash this execur tion and forthcoming bond, because, 1. The fi. fa. was not fóunded on any judgment of that court; 2. Because the principal in the judgment, on which the judgment of the high court of errors and appeals was founded, is not mentioned; 3. Because the proper credits are not allowed; and 4. For other good reasons.
    The court below quashed the execution and bond, and this writ of error was prosecuted. The error assigned here, is the action of the court below,, in quashing the execution and bond.
    Baine, for plaintiff in error.
    All the evidence in the cause, or motion, is set out, and consists of the motion, the fi. fa. (verbatim) the forthcoming bond, and the judgment of the high court, on which the Ji. fa. is founded.
    That judgment, it will be perceived, is against Stem Simmons, principal, and Henry D. Bridges,'James N. Harper, and Thomas J. N. Bridges, his sureties.
    The fi. fa. is precisely against the same persons, and no other. How, then, can it be said, that the principal in the judgment, on which the execution was founded, is no party to the execution %
    
    But the court quashed it, under the impression, that Thomas N. Waul, the principal in the original judgment, should have been' a party to the execution. The state of the case is this : Simmons, as the surety of Waul, in a forthcoming bond, sued out his audita querela, to be discharged from plaintiff’s judgment. The court dismissed his cause. He appealed — not Waul, for he was no party to the proceedings — and the high court affirmed the judgment, and entered a new judgment on his bond, against himself and sureties. The fi. fa. issued on this judgment, and the court quashed it, because Waul was not a party to it. There is no way he could have been made a party to that execution.
    He was a total stranger to the judgment on which it emanated. He was not a party to the judgment, He was not a party to the proceedings in the high court, on which the judgment was founded; nor was he a party to the proceedings below, from which Stern Simmons' appealed, or brought his writ of error to reverse. ■ Upon what principle of law, or justice, or propriety of any kind, could an execution have issued against him, on this judgment ?
    No one can explain.
    As to the judgment to be entered by the high court upon the affirmance of a judgment helow, see our statute, How. and Hutch. 535.
   Mr. Justice Clayton

delivered the opinion of the court.

The record in this case discloses this state of facts. The present plaintiffs in error, in March, 1838, recovered a judgment in the circuit court of Yalobusha county, against General Thomas N. Waul, for $793 and costs. Execution was issued thereon, and a forthcoming bond given, with Stem Simmons as surety, which was forfeited in March, 1839. Afterwards, the said Simmons sued out a writ of audita querela, to reverse the statutory judgment, which writ was dismissed in the court below. Simmons prosecuted a writ of error to this court, from the judgment of dismission, and gave hond for the writ of error, with Henry D. Bridges, James N. Harper, and Thomas J. N.’ Bridges, as his sureties. The original defendant, Waul, was no party to any of the proceedings subsequent to the judgment upon the forthcoming bond. At the January term, 1S43, of this court, the writ of error was determined, and the judgment of the court below was affirmed. This court also gave judgment in favor of the then defendants in error, the now plaintiffs in error, “against the plaintiff in error, Stern Simmons, and' Henry D. Bridges, Janies N. Harper, and Thomas J. N. Bridges, his sureties, in the writ of error bond, for $872, and costs and damages.” This judgment was certified to the clerk of the circuit court of Yalobusha, who issued an execution upon it, not including Waul, the original defendant, against whom the judgment was first rendered, in the court below. The defendants gave a forthcoming bond, and, at the return term, moved to quash the execution and the bond, for several reasons, two only of which are necessary, to be noticed by this court. They are as follows :

1. Because the execution is not founded on any judgment of the court, that is, of the circuit court, of Yalobusha.

2. Because the principal in the judgment, upon which the judgment of the high court of errors and appeals was founded, is not included in the said execution, or bond.

The court sustained the motion. The facts are spread out in a bill of exceptions, and the cause brought, by writ of error, to this court.

The statute directs, that a certified copy of the appeal, or writ of error bond, shall accompany the record to this court, and, in case the judgment, or decree, of the court below shall be affirmed, the supreme court shall enter up judgment, or decree, against all the obligors in the bond; “ and it shall be duty of the clerk of the court below, on the certificate of the clerk of the supreme court, to issue execution thereon accordingly.” H. & H. 635.

Waul, the original defendant, was no party upon the proceeding in this court; no judgment, therefore, could have been rendered against him. It follows, that when the clerk of the court below issued the execution upon the judgment of this .court, that the execution must conform to the judgment of this court. In no other way could there be a compliance with the statute.

This court could only have rendered judgment against Simmons, and his sureties in the writ of error bond; by which Waul could not be affected, as he was no party to it. He now f stands in the attitude of a party not joining in an appeal, or writ of error, as to whom there has been a summons and severance. He is still liable to the judgment, on the forfeited forthcoming bond, in the same manner, and to the same e'xtent, as before the writ of error. Execution may issue thereon, as to Waul, at any time, unless there be some other obstacle than the proceedings upon the writ of error in this case. Puckett v. Ainsworth, 1 Yer. 254.

From this view it results, that the'execution and forthcoming bond were improperly quashed in the court below, and that the judgment must be reversed, and the cause remanded, that execution may issue in that court.- •

Judgment reversed.  