Dover v. Henderson

• Decision Date: 06 March 1939
• Docket Number: 4-5402
• Citation: 125 S.W.2d 798,197 Ark. 971
• Parties: DOVER v. HENDERSON
• Court: Arkansas Supreme Court

125 S.W.2d 798

197 Ark. 971

DOVER v. HENDERSON

4-5402

Supreme Court of Arkansas

March 6, 1939

Appeal from Polk Circuit Court; Minor Milwee, Judge; affirmed.

Judgment affirmed.

J F. Quillin, for appellant.

Gordon B. Carlton, for appellee.

OPINION

HOLT, J.

On February 3, 1937, appellees filed suit for unlawful detainer in the Polk circuit court against appellant, L. M. Dover, and for possession of three lots in the town of Hatfield, which they claimed to own, and for rents. Appellant filed answer and after issues joined the cause was submitted to the court and on April 27, 1937, judgment was rendered in favor of appellees, awarding them possession of the property, but held that no sufficient showing was made to entitle them to rents. From this judgment, appellant Dover, in apt time, perfected his appeal to this court, and on the 3rd day of May, 1937 executed a supersedeas bond, with himself as principal and Ober Rowe, D. O. Dover and Dr. C. A. Campbell as sureties. His appeal was prosecuted to this court and the judgment of the trial court was affirmed on November 22, 1937, and is reported in 195 Ark. 496.

Upon the return and filing of a mandate with the clerk of the Polk circuit court, appellees filed a motion in the Polk circuit court for a summary judgment against appellants, Dover as principal and Ober Rowe, D. O. Dover and Dr. C. A. Campbell, as sureties on the supersedeas bond, for rents on the property in question, in the sum of $ 324.70, which had accumulated during the appeal to this court, covering the time appellees had been deprived of the possession and use of said property, pending said appeal, from April 27, 1937, to February 25, 1938.

Appellants filed their joint response to the motion denying the right of appellees to recover for rents and damages, and pleading as a complete bar to the action, on the bond, both that the bond did not bind appellants for the payment of rents, and that all questions raised in the motion, except that of physical damage to the property, were res adjudicata. They further pleaded that the bond was not in statutory form and offered that as another defense to summary judgment thereon. Upon the petition, response, evidence of witnesses introduced by both appellants and appellees, the original judgment of the trial court and its findings of law and fact in the first trial, the court entered judgment in favor of appellees and against appellants in the sum of $ 324.70 for the rents accruing since the judgment in the original suit rendered on April 27, 1937, up to February 25, 1938, the latter date being the time appellants surrendered possession of the property in question to appellees. From this judgment comes this appeal.

Omitting formal parts, the motion for summary judgment filed by appellees is as follows. "Come the plaintiffs, Talmadge Henderson and Vivian Henderson, and move the court for judgment against the defendant, L. M. Dover, and the sureties on his supersedeas bond, Ober Rowe, D. O. Dover and Dr. C. A. Campbell, and each of them, for cause state: That on the 23rd day of April, 1937, plaintiffs were awarded a writ of possession against the defendant, L. M. Dover, by an order of this court for possession of lots 4, 5 and 6 in block 5, of the town of Hatfield, in the above-styled action. That the defendant prayed and was granted an appeal to the Supreme Court of Arkansas from said order and judgment of this court, and on the 3rd day of May, 1937, the defendant, L. M. Dover, and Ober Rowe, D. O. Dover and Dr. C. A. Campbell executed a supersedeas bond wherein it was provided that they would pay all rentals and damages to said plaintiffs during the pendency of the appeal, of which appellees, plaintiffs herein, were kept out of possession by reason of said appeal. That said supersedeas bond was duly filed with the clerk of this court on the 3rd day of May, 1937, and a copy of said bond is attached hereto, marked Exhibit "A", and made a part of this motion. That thereafter the defendant perfected his appeal to the Supreme Court, and on the 31st day of January, 1938, the date when said judgment was affirmed, and thereafter, until the 25th day of February, 1938, the defendant kept plaintiffs out of possession of the said property and retained the use and possession of said property himself. That during said period of time the defendant failed, refused and neglected to pay the rental on said property and still continues to refuse payment of said rental. That the customary and proper rental to which plaintiffs are entitled for said period of time is one cent per gallon of the gasoline sold by said defendant at his station on said property, and that during said period the defendant sold 32,470 gallons of gasoline, and the rental thereon amounts to the sum of $ 324.70 and $ 100 damages to building. That the plaintiffs are entitled to a judgment against the defendant, L. M. Dover, and the sureties on said supersedeas bond, Ober Rowe, D. O. Dover and Dr. C. A. Campbell, and each of them, in the sum of $ 324.70 as reasonable rental and damages for the use of said property and withholding the same from the plaintiffs. Wherefore plaintiffs ask for judgment against the said L. M. Dover, Ober Rowe, D. O. Dover and Dr. C. A. Campbell in the sum of $ 324.70 as rental and $ 100 damages for the use of the property herein described for the period set out and for the further sum $ 15 which was the cost of printing of plaintiffs' briefs in the Supreme Court in this cause."

The material portions of the supersedeas bond, copy of which was made a part of this motion as Exhibit "A", are as follows: . . . "Now, L. M. Dover, as principal, and Ober Rowe, D. O. Dover and Dr. C. A. Campbell, as sureties, hereby covenant with the said appellees that the said appellant will pay to the appellees all costs and damages that may be adjudged against the appellant on the appeal, . . . and shall perform the judgment of the court appealed from . . . and all damages to property during the pendency of the appeal of which the appellees are kept out of possession by reason of the appeal."

Appellants in their joint response to this motion allege as follows "They deny that said bond bound the respondents to pay all rents and damages to said plaintiffs during the pendency of the appeal; they state that, in the complaint filed in this action, the plaintiffs ask judgment against the defendant, L. M. Dover, for rent upon the property involved herein, the sum prayed for being cumulative as such rents might accrue; that when judgment was rendered in this cause against the said defendant on April 23, 1937, the court specifically found that the plaintiffs were not entitled to rent upon said property, as is shown by the court's findings of fact and of law, a copy of which is attached hereto, marked Exhibit "A", that upon said findings of facts and law the judgment of the court was entered upon the record, said judgment being specifically referred to herein, and in said judgment the plaintiffs were not awarded judgment for rents. That upon the rendition of said judgment the said defendant appealed from the portion thereof which was against him, but the plaintiffs did not appeal nor cross-appeal from the findings and judgment upon the question of rents; that the time for such appeal or cross-appeal has now expired, and that the said judgment of this court has now in all things been affirmed by the Supreme Court of Arkansas, as alleged in plaintiffs' motion. That in the answer to the original complaint of the plaintiffs, the said defendant denied that he owed the plaintiffs for any rents; that the issue thus joined was material to this cause as first presented, and that the question of rents, therefore, has been fully adjudicated and determined...