Prairie Creek Coal Mining Co. v. Kittrell
| Decision Date | 31 March 1913 |
| Citation | 155 S.W. 496,107 Ark. 361 |
| Parties | PRAIRIE CREEK COAL MINING COMPANY v. KITTRELL |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court; Daniel Hon, Judge; motion overruled.
Motion overruled.
Hill Brizzolara & Fitzgerald, for the surety.
Read & McDonough, for appellant.
Appellant gave a supersedeas bond, and the judgment was affirmed. Prairie Creek Coal Mining Co. v Kittrell, 106 Ark. 138, 153 S.W. 89.
The surety on the supersedeas bond now moves this court for summary judgment against appellant, alleging that the amount of the affirmed judgment has been paid by said surety.
The question arises whether or not this court has authority to render such judgment.
The only statute which in express terms authorizes this court to render summary judgment on a supersedeas bond only provides for judgment against the sureties. Kirby's Digest, § 1235.
The statute now relied on by the moving party is taken from the Civil Code and reads as follows:
"Judgments and final orders may be obtained, on motion, by sureties against their principals; sureties against their co-sureties for recovery of money due them on account of payments made by them as such; by clients against attorneys; plaintiffs in executions against sheriffs, constables and other officers for the recovery of money or property collected for them and damages, and in all other cases specially authorized by statute." Kirby's Digest, § 4480.
Succeeding sections specify the length of notice to be given and the form thereof, and the time when the motion will be presented. There is no specification in the statute as to the court wherein the motion shall be presented. The Digestors have, since the enactment of this statute, incorporated in the same chapter of the Digest the Act of January 15, 1857, having reference to summary judgments against sheriffs, coroners, constables and clerks for failure to pay over money and other delinquencies.
This court in Milor v. Farrelly, 25 Ark. 353, held that a proceeding against a sheriff under the Act of 1857 must be prosecuted in the county where the sheriff and the sureties on his bond reside, and not in the county where the original judgment was rendered.
Other provisions found in chapter 137 Revised Statutes, concerning the rights of sureties against principals and against co-sureties, are brought forward into the Digest. Kirby's Digest, §§ 7924-7929.
Section 7925 provides that, when payment shall be made by a surety in money, he may "recover the same, with interest, in an action for so much money paid to the...
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State v. Martineau
... ... no statute regulating the practice. Prairie C. C. M ... Co. v. Kittrell, 107 Ark. 361, 155 S.W. 496 ... ...
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State v. Martineau
...Court where jurisdiction is derived from the Constitution, but there is no statute regulating the practice. Prairie C. C. M. Co. v. Kittrell, 107 Ark. 361, 155 S. W. 496. This leaves the matter of notice as one to be fixed by rules of this court. This seems to have been the thought in the m......
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Thornbrough v. Mayner
...and the strict construction which we are forced to give it, Files v. Robinson & Co., 30 Ark. 487; Prairie Creek Coal Mining Co. v. Kittrell, 107 Ark. 361, 155 S.W. 496, 50 Am.Jur., Statutes, § 406, makes it mandatory that any judgments rendered pursuant to these statutes conform to the very......
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