Craig v. Collier

• Citation: 244 S.W. 717,155 Ark. 538
• Decision Date: 13 November 1922
• Docket Number: 260
• Parties: CRAIG v. COLLIER
• Court: Arkansas Supreme Court

244 S.W. 717

155 Ark. 538

CRAIG v. COLLIER

No. 260

Supreme Court of Arkansas

November 13, 1922

Appeal from Prairie Chancery Court, Northern District; John M Elliott, Chancellor; reversed.

Decree reversed and cause remanded.

Brundidge & Neelly, for appellant.

By executing the bond, the sureties became parties to the suit and notice to them before judgment was not necessary. 29 Ark 208; 29 Ark. 216.

Emmet Vaughan, for appellee.

Where judgment is obtained against one or more of several persons jointly bound, it is a bar to an action against the other obligators. 95 U.S. 347; 99 U.S. 35; 2 McLean 168; 6 Wall 231; 4 Ala. 282; 80 N.E. 92; 82 Ill. 84; 95 N.W. 681; 2 N.H. 448; 76 A. 344; 4 N.W. 774; 136 P. 826; 48 Wis. 477; 23 Cyc. 1208.

OPINION

WOOD J.

This action was begun in the northern district of the Prairie Circuit Court by the appellant against the appellee in unlawful detainer, under secs. 4842-4847, Crawford & Moses' Digest. The appellee Collier executed a bond under the latter section to retain possession of the premises. The cause was transferred to the chancery court, where it proceeded to a decree in favor of the appellant against the appellee Collier on April 20, 1920, for the possession of the land and the sum of $ 400, two years' rent found by the chancellor to be due at that time. The court retained control of the cause for such further orders "as may be proper to enforce the rights of the parties hereto as herein adjudged." By oversight of the attorneys of appellant, decree was not asked or rendered at that term of the court against the appellee, Irwin, who was surety on appellee Collier's bond. The cause was appealed by the appellee Collier to the Supreme Court, where the decree of the lower court was affirmed.

The appellee Collier was insolvent. On the 17th day of February, 1921, the appellant gave notice to the appellees that she would move for judgment against the appellee Irwin as surety on the bond for the rents which had accrued at the time the decree was rendered, and also for the sum of $ 200 rents which had accrued during the pendency of the cause in the Supreme Court, making a total sum of $ 600, for which the appellant asked judgment.

At the April term of the chancery court, in pursuance of the notice, the appellant moved the court for judgment against the appellee Collier, the principal, and appellee Irwin, the surety on his bond, in the sum of $ 600, rent then claimed to be due. The appellee Irwin demurred to the motion on the ground that the court had no jurisdiction to grant the relief asked for. The court sustained the demurrer and dismissed the appellant's motion. The appellant stood on her motion, and prosecutes this appeal.

Under the provisions of the bond the appellee Irwin bound himself to pay such judgment as might be rendered in favor of the appellant against the appellee Collier, his principal in the bond. Sec. 4847, C. & M. Digest. Sec. 4854, C. & M. Digest, provides in part as follows: "In all cases where judgment is rendered either against the plaintiff or defendant for any amount of recovery, damages or costs, judgment shall also be rendered against his sureties in the bond given under the provisions of this act." The effect of the filing of the bond under the statute was to make the appellee Irwin a party to the action. Fletcher v. Menken, 37 Ark. 206; White v. Prigmore, 29 Ark. 208; Callahan v. Saleski, 29 Ark. 216. The liability of the appellee Irwin was not that of a joint contractual obligation or liability on a joint obligation of any kind. His liability was simply that of a surety bound by the debt of his principal, under the statute, and the fact that judgment was rendered against the principal at a previous term of the court and not against the surety does not bar the present action by summary motion against the appellee Irwin, the surety. His is a statutory obligation to satisfy the judgment rendered against his principal.

The doctrine that a judgment taken against one only of several joint contractors merges the entire cause of action in the judgment and bars any subsequent suit on the same obligation against any of the other joint debtors or obligors has no application to the facts of...