Prewett v. Waterworks Improvement District No. 1

• Court: Arkansas Supreme Court
• Writing for the Court: KIRBY, J.
• Citation: Prewett v. Waterworks Improvement District No. 1, 5 S.W.2d 735, 176 Ark. 1166 (Ark. 1928)
• Decision Date: 23 April 1928
• Docket Number: 396
• Parties: PREWETT v. WATERWORKS IMPROVEMENT DISTRICT No. 1

5 S.W.2d 735

176 Ark. 1166

PREWETT v. WATERWORKS IMPROVEMENT DISTRICT No. 1

No. 396

Supreme Court of Arkansas

April 23, 1928

Appeal from Little River Court; Seth C. Reynolds, special Judge affirmed.

Judgment affirmed.

Shaver Shaver & Williams and A. D. DuLaney, for appellant.

A. P Steel and Norwood & Alley, for appellee.

OPINION

KIRBY, J.

This is the second appeal of this case, a statement of which will be found in Waterworks Improvement Dist. v. Rainwater, 173 Ark. 523, 292 S.W. 989. It was held on the former appeal, under the facts proved, that the court should have entered judgment in favor of the improvement district upon the bond of the depository bank and the sureties thereon for the sum of $ 4,000, with interest at 4 per cent. as provided in the contract between the bank and the improvement district.

The case was reversed and remanded, it being said in the opinion: "The court erred in not rendering a verdict in accordance with the views expressed in this opinion, and the judgment will be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion."

On the remand of the cause the defendants filed an amendment to their answer, setting up that they became sureties upon the bond on the false representation of A. E. Waters, the president of the bank, that he was also signing said bond as a surety; that the plaintiffs knew their signatures were so procured, and accepted the bond without requiring Waters to sign it as a co-surety, thereby knowingly releasing him from any personal liability on the bond, without the knowledge, consent or acquiescence of the other sureties, and that they were thereby released and absolved from any liability or obligation under the bond.

Another amendment alleged that A. E. Waters was the real party at interest in securing the deposit of funds in the bank, of which he owned three-fourths of the stock; that he handled and negotiated all the transactions connected with it, had the bond prepared, and presented to the other sureties, representing that he would sign same as surety and become jointly liable; that their signatures were procured upon such false representation, and they did not know that Waters was not a surety on said bond until the suit was filed. That he agreed with the defendants to become jointly liable, and fraudulently failed to sign the bond; that he was legally jointly bound by his conduct with the other defendants, if there was any liability incurred by them on the bond, and that Waters should be made a defendant, and if any judgment was rendered against the other sureties it should be rendered against him as well. Alleged the joint liability of Waters under the circumstances, and prayed that he be made a party defendant, and that the cause be continued until the next term, etc.

Appellee moved to strike from the files the amended answers, because any judgment rendered thereon would be inconsistent with the opinion remanding the case, and because the alleged defenses attempted to be set up by the amendments to the answer were known or could have been known to the defendants before the cause was first tried, and because the matters alleged in the amendments stated no defenses to plaintiff's complaint. Appellees also moved for judgment on the mandate for the amount which the court, on the former appeal, held the judgment should have been rendered for.

The court sustained the motion to strike the amendments to the answer, and, appellants refusing to plead further, rendered judgment for $ 4,187.48, the amount due according to the opinion of the Supreme Court on the first appeal, and from this judgment this appeal is prosecuted.

Appellants insist that the court erred in striking out the amendments to their answer, in not granting a new trial, and in rendering a judgment upon the motion against them on the mandate, without the...