Bradford v. National Surety Co.

• Decision Date: 18 May 1922
• Docket Number: 6 Div. 658.
• Citation: 93 So. 473,207 Ala. 549
• Parties: BRADFORD v. NATIONAL SURETY CO.
• Court: Alabama Supreme Court

93 So. 473

207 Ala. 549

BRADFORD v. NATIONAL SURETY CO.

6 Div. 658.

Supreme Court of Alabama

May 18, 1922

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by the National Surety Company against Frank Tally Bradford. From a decree overruling demurrer to bill and defendant's motion to dissolve temporary injunction, defendant appeals. Affirmed.

Weatherly Birch & Hickman, of Birmingham, for appellant.

Percy Benners & Burr and Salem Ford, all of Birmingham, for appellee.

SAYRE J.

Appellee filed the bill in this cause, averring that it was surety on the statutory official bond of one Dowis as deputy sheriff of Jefferson county in the penal sum of $2,000, as provided by the act of September 10, 1915 (Acts, p. 382); that on January 7, 1921, Agnes May Sims brought suit against Dowis and appellee, as surety as aforesaid, for wrong and injury theretofore done by Dowis under color of his office, and on October 7, 1921, recovered judgment in the sum of $2,000 that on June 16, 1921, appellant brought a similar action against Dowis and appellee and on November 14, 1921 recovered judgment in the sum of $1,000; that on November 23, 1921, Agnes May Sims caused an execution to issue on her judgment, and a copy of the same to be certified to the Commissioner of Insurance, in substantial compliance with section 1517 of the Code as amended by section 6 of the act creating the department of insurance (Acts 1915, p. 836), whereupon, December 12, 1921, complainant paid the judgment thus exhausting the security; that appellant is about to cause an execution on his judgment to issue against complainant and its securities on deposit with the state of Alabama. Wherefore complainant prayed an injunction against any effort by execution or otherwise to collect appellant's judgment out of complainant's property. Appellant's motion to dissolve the temporary injunction, issued upon the filing of the bill, and his demurrer to the bill, being overruled, this appeal followed.

The responsibility of appellee as surety on the bond must be limited by the penal sum therein named, even though damages may have been sustained to a greater extent. Ansley v. Mock, 8 Ala. 444; 25 Am. & Eng. Encyc. (2d Ed.) p. 726; 35 Cyc. 1912.

After recovery and satisfaction of judgment against the surety to the full amount of the penalty of the bond, he may defend at law on that ground against all pending or future actions. Authorities supra.

To make this defense good, the former judgment must have been satisfied. Moore v. Worsham, 5 Ala. 645.

From the statement of facts, supra, it will be noted that complainant (appellee) in this cause could not have pleaded the judgment in the Sims Case against the action by appellant and cannot therefore be charged with negligence in and about making its defense in the latter case. Stevens v. Hertzler, 114 Ala. 563, 578, 22 So. 121. In such case equity will enjoin the collection of the last judgment. Leggett v. Humphreys, 21 How. 66, 16 L.Ed. 50.

But appellant contends that complainant should not have relief for the reason that it might have filed its bill of interpleader, depositing the amount of the penalty of the bond in court to be distributed as equity and good conscience would require. The inference is that in that event the amount of the bond would have been distributed pro rata among appellant and Agnes May Sims- and, possibly, too, among the plaintiffs in other suits pending, but undetermined, against Dowis and complainant as surety, and that it was the duty of complainant to bring about that result. We have seen no authorities so holding. Thomas Laughlin Co. v. American Surety Co., 114 F. 627, 51 C. C. A. 247, and American Surety Co. v. Lawrenceville Cement Co. (C. C.) 110 F. 717, cited among others, may require brief comment. The bills in these cases were filed under a statute of the United States, and their equity was sustained, not as bills of...