Love v. Cahn

• Decision Date: 20 December 1909
• Citation: 124 S.W. 259,93 Ark. 215
• Parties: LOVE v. CAHN
• Court: Arkansas Supreme Court

124 S.W. 259

93 Ark. 215

LOVE v. CAHN

Supreme Court of Arkansas

December 20, 1909

Appeal from Chicot Chancery Court; Zachariah T. Wood, Chancellor affirmed.

STATEMENT BY THE COURT.

This was an action originally instituted in the Chicot Circuit Court by the appellee, Uda Cahn, against the appellants to recover upon a supersedeas bond executed by them in connection with an appeal to the Supreme Court taken from the decree and proceedings of the Chicot Chancery Court rendered in a cause wherein J. Kaufman was plaintiff and Henry and Mattie Love, his wife, were defendants. Upon said appeal the decree was affirmed and finally disposed of by this court on March 7, 1904; and the opinion rendered thereon is reported under the style of Love v. Kaufman, in 72 Ark. 265.

On September 10, 1900, the Chicot Chancery Court in said cause rendered a decree in favor of J. Kaufman and against Henry Love for the recovery of $ 1,126.04 and the foreclosure of a mortgage on certain land in Chicot County, which had been executed to secure said indebtedness. The said land was sold by a commissioner under and by authority of said decree to said J. Kaufman for $ 1,100; and that sale was duly confirmed on June 3, 1901, and a deed duly executed by the commissioner to said Kaufman for said land in pursuance thereof. In said decree of confirmation the chancery court made also the following order: "And, it further appearing that the defendant, Henry Love, is occupying and has a growing crop on the improved portion of said land, it is further ordered that he remain in possession of said land for and during the year 1901, as the tenant of said J. Kaufman, and that he pay the said J. Kaufman the sum of five dollars per acre rent therefor, and that he surrender possession of said premises to the said J. Kaufman on the first day of January 1902."

During 1901 Henry Love made said payment for the possession of said land under said order for the year of 1901 to Kaufman; but the court in the trial of the case at bar found that he did not surrender thereafter the possession of the land to Kaufman; and we think that there is sufficient evidence to sustain that finding.

On September 9, 1901, Henry Love duly prosecuted and perfected in the Supreme Court an appeal from said decree and proceedings of said chancery court, but without supersedeas bond at that time. Subsequently, on May 4, 1903, a supersedeas bond was executed and filed in the Supreme Court in said cause; and it is alleged in the complaint that a supersedeas was duly issued therein, which allegation was not denied. The supersedeas bond was executed by the appellants Henry Love and Baldy Vinson, and was to the effect that the appellant would perform all the requirements and conditions named in section 1218 of Kirby's Digest, providing for the execution of such bond. At the same time said Vinson, who was the attorney of said Love, believing he had the authority to do so, signed the name of E. A. Bolton, his associate attorney in said case, to said bond as such associate attorney.

In his complaint in the case at bar the appellee alleged that during the pendency of said appeal, and by reason of the stay of proceedings secured by said supersedeas, said Love retained possession of and kept said Kaufman out of the rents of said land for the years of 1902, 1903, 1904 and 1905, aggregating $ 1,440, and did also damage said land by committing waste to the amount of $ 200. He further alleged that said Kaufman did in 1906, by writing duly executed, transfer and assign to him all the claim and right of action growing out of the liability of appellants on said supersedeas bond; and he sought a recovery for the amount of said rents and damages. In said complaint said Kaufman is also made a party defendant, but no process was issued for him.

The appellants filed a general demurrer to the complaint, which was overruled, and they filed an answer, in which they denied that Love refused to surrender the possession of the land to Kaufman on January 1, 1902; and they claimed that any possession that he held thereafter was as tenant of Kaufman. They also denied the transfer of the claim upon which this action is based by Kaufman to appellee. They made the answer a cross complaint, and amongst other things made certain allegations upon which they based a prayer for affirmative relief against Kaufman, and they asked that process issue for him. They also asked that the cause be transferred to the chancery court, which was done.

At the trial of the cause Kaufman filed an answer in the case, and also appeared as a witness. In his pleading and in his deposition he stated that he had transferred and assigned the claim upon which this action is based to the appellee, as alleged in the complaint.

Upon the disputed questions of fact the court found that Love did not surrender the possession of the land to Kaufman on January 1, 1902, nor at any time thereafter, but upon his threatening to take possession Love perfected his appeal from said decree and secured the supersedeas thereof. That the claim and right of action upon which this suit is based was duly transferred and assigned by said Kaufman to appellee. That said Bolton, one of the defendants, did not execute said bond. That, by the execution of the bond sued on, all proceedings under the decree and orders of the chancery court in said cause, wherein Kaufman was plaintiff and Love was defendant, were stayed pending said appeal to the Supreme Court; and that said Love retained possession of the land and Kaufman was deprived of the rents thereof. That the said decree was affirmed on March 7, 1904, when the liability on the supersedeas bond ceased. It found that the evidence did not show that any waste was committed on said land after said affirmance of the decree. It found that appellee was entitled to recover on said bond for the value of the rents of the years of 1902 and 1903, which it found to be $ 360 for each year. It entered a decree dismissing the complaint as to said Bolton, and in favor of appellee and against appellants Love and Vinson for the said value of the rents for the years of 1902 and 1903. It denied any recovery for rents for any other years and for any alleged waste. No appeal was taken from that portion of the decree dismissing the complaint as to defendant Bolton. The other parties, plaintiff and defendants, to the suit below appeal from said decree.

Decree affirmed.

Ratcliffe Fletcher & Ratcliffe, for appellee; Baldy Vinson, of counsel.

Kaufman was a necessary party, either plaintiff or defendant. Kirby's Digest, § 509; 47 Ark. 541; 10 Ark. 304; 57 Ark. 469. And he must have been made a party within one year from the taking of his nonsuit. Kirby's Dig., § 5083. The commencement of an action is the filing of the complaint and issuance of summons. Kirby's Dig., § 6033; 57 Ark. 231; Id. 460; 62 Ark. 401. A surety's obligation cannot be extended beyond its terms. 71 Ark. 44; 82 Ark. 208; 44 Ark. 178; 76 Ark. 415. And only applies to the nature of the case appealed. 73 Ark. 67; 66 Neb. 891.

Allen Beadel and W. G. Streett, for appellee.

A supersedeas bond is assignable. Kirby's Dig., § 509. A general demurrer does not raise the question of defect or nonjoinder of parties. 33 Ark. 497; 34 Ark. 73. And the objection not raised by demurrer or answer is waived. 75 Ark. 288. Sureties on such bond are liable for all damages accruing during the pendency of the appeal. 59 Ark. 32; 51 Ark. 232.

OPINION

FRAUENTHAL, J., (after stating the facts.)

1. Before considering the questions involving the rights upon the one hand and the liabilities of the parties on the other hand, in this case, we will determine the objection urged by the appellants to the pleadings. It is contended that the claim or right of action growing out of the liabilities accruing upon the alleged breach of the supersedeas bond is not assignable, and that therefore the said Kaufman, who was the obligee in said bond, was a proper party to this suit. The appellants in the court below did not file a demurrer on the ground that there was a defect of parties, but only filed a general demurrer. A general demurrer does not reach the defect of the want of proper parties. Eagle v. Beard, 33 Ark. 497; Chrisman v. Jones, 34 Ark. 73; Less v. English, 75 Ark. 288, 87 S.W. 447. But, furthermore, in this case Kaufman was actually made a party to the suit. In the complaint he was specifically named as a party defendant, and in their cross-complaint the appellants asked that process issue for him and asked for affirmative relief against him. While no process was issued for him, he did file an answer, and thus did enter his appearance in the case, and thereby was made a party thereto as effectively as if he had been duly served with process of summons. And, even though it should be considered that the claim sued on was not assignable so as to conclude the rights of Kaufman, and on that account he was a proper party, this defect was remedied by thus making him a party after the action was begun. And the court did not abuse its discretion by permitting him to enter his appearance and file his pleading in the case. Boles v. Jessup, 57 Ark. 469, 21 S.W. 880. If he was a necessary party, he thus actually became a party to the suit; and any claim or right that he may have in the cause of action is concluded by the decree of the court, against which, therefore, the appellants are thus fully protected.

But it is urged further by appellants that Kaufman had at one time instituted suit upon this claim, and thereafter did suffer a nonsuit; that his answer in this case was not filed, and his entry of appearance in the cause was not made, until more than one year after said order of nonsuit; that any right of...