Hodges v. Taylor

• Decision Date: 15 February 1890
• Citation: 13 S.W. 129
• Parties: HODGES <I>et al.</I> <I>v.</I> TAYLOR <I>et al.</I>
• Court: Arkansas Supreme Court

Page 129

13 S.W. 129

HODGES et al.v.

TAYLOR et al.

Supreme Court of Arkansas.

February 15, 1890.

Appeal from circuit court, Washington county; E. S. McDANIEL, Special Judge.

In February, 1859, James C. Hodges borrowed $1,000 from W. D. Reagan, giving W. B. Taylor and George E. White as security. In order to indemnify Taylor, Hodges executed to him a mortgage on real estate, conditioned that he would indemnify Taylor from all actions, charges, and demands that might at any time be prosecuted against him as a result of his becoming surety. Taylor, having been obliged to settle the debt, brought action on the mortgage in 1860, which, on demurrer to the complaint, was dismissed without prejudice. Taylor again commenced action, but on March 13, 1861, paid all costs, and dismissed his suit. On June 6, 1866, Taylor brought this action against Robert Hodges, heir of James C., and the widow and legal representatives of deceased. The cause was continued by consent, from term to term, until 1871, when Robert Hodges died. In February, 1872, the death of Robert Hodges being suggested, the court entered an order, on motion of plaintiff, making his widow and children parties defendant to the action. On July 24, 1872, summons was duly issued upon the order, and served on August 20th. A guardian ad litem was appointed for the minor defendants, and answered for all of them. The action was then continued from term to term till 1887, when plaintiff amended his complaint, making certain others parties defendant. All the minors, except one, having become of age, appeared and answered; and a new guardian ad litem being appointed for the remaining minor, he appeared and answered for him. Defendants pleaded the statute of limitations, and, judgment having been rendered for plaintiff, they appealed.

Mansf. Dig. Ark. § 5237, provides that revivor of actions shall be by order of the court that the action be revived in the name of the representative or successor of the party who has died, and section 5239 provides that notice of such revivor shall be given to the adverse party by service of the order in the manner as a summons.

J. D. Walker, for appellants. B. R. Davidson and L. Gregg, for appellee.

PER CURIAM.

If the time which elapsed during the late war is not counted, this action was commenced within less than three years after the right to bring it accrued. As the statutes of limitations were suspended during that time, it cannot be counted. The action was not...