Baxter County Bank v. Ozark Ins. Co.

• Decision Date: 06 March 1911
• Citation: 135 S.W. 819
• Parties: BAXTER COUNTY BANK et al. v. OZARK INS. CO. et al.
• Court: Arkansas Supreme Court

135 S.W. 819

BAXTER COUNTY BANK et al. v. OZARK INS. CO. et al.

Supreme Court of Arkansas.

March 6, 1911.

Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.

Action by the Baxter County Bank and another against the Ozark Insurance Company and others. From a judgment for a part of defendants, plaintiffs appeal. Reversed, and judgment rendered for plaintiffs, for the amount claimed.

T. M. Montgomery brought suit against the Ozark Insurance Company to recover upon a policy of fire insurance issued by it to him, and recovered judgment. He caused an execution to be issued against the insurance company, which was returned nulla bona. Subsequently Montgomery sold and transferred his judgment against the insurance company to the Baxter County Bank.

The present suit was instituted by the Baxter County Bank and T. M. Montgomery against the insurance company and the sureties on its bond. At the trial, the plaintiffs introduced in evidence the policy of insurance, a certified copy of the judgment of T. M. Montgomery against the Ozark Insurance Company, and a copy of the bond of the insurance company. The bond was executed on July 18, 1905. After the introduction of this evidence it was agreed in open court and admitted before the jury: "That the insurance policy filed as an exhibit to plaintiff's complaint was duly executed by the Ozark Insurance Company on the 5th day of June, 1905, and that the property described in said policy was destroyed by fire on the 5th day of September, 1905, and that the defendants filed and executed the bond sued on, being the bond filed as Exhibit F to plaintiff's complaint — the bond above referred to."

The court instructed the jury that the sureties were not liable on the bond, and directed the jury to return a verdict for the defendants, which was accordingly done. From the judgment rendered, the plaintiffs have appealed.

Horton & South and W. S. Chastain, for appellants. C. E. & H. P. Warner, for appellees.

HART, J. (after stating the facts as above).

The judgment of T. M. Montgomery against the Ozark Insurance Company was regular on its face, and no evidence was introduced by defendants to impeach it. "As a general rule a judgment against an insurance company, if no fraud or collusion is shown, is evidence against the surety, in a bond executed by the company for the benefit of the policy holders." Ingle v. Batesville Grocery Co., 89 Ark. 378, 117 S. W. 241.

The bond in this case is precisely similar in...