Thorsen v. Poe

• Decision Date: 20 March 1916
• Docket Number: (No. 269.)
• Citation: 184 S.W. 427
• Parties: THORSEN et al. v. POE et al.
• Court: Arkansas Supreme Court

184 S.W. 427

THORSEN et al. v. POE et al.

(No. 269.)

Supreme Court of Arkansas.

March 20, 1916.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Suit for injunction by A. B. Poe and others against Louis Thorsen and others. Decree for plaintiffs, and defendants appeal. Affirmed.

This appeal comes from a judgment of the chancery court, enjoining appellants, assignees of a certain judgment of the American Insurance Company against McGehee Liquor Company, and their attorneys, from the collection thereof, from A. B. Poe, one of the parties against whom the judgment was rendered. A. B. Poe, W. B. Calhoun, and others, became sureties upon the bond of said insurance company, required by the statute, authorizing it to do business in the state. The McGehee Liquor Company sustained a loss under a policy issued it by said company, which was adjusted, and a draft on the home office in another state indorsed by A. B. Poe and Jno. B. Driver was given for payment of the loss. The insurance company became insolvent and went into the hands of a receiver before the draft was paid. The said liquor company brought suit against the insurance company, the sureties on its bond, and the indorsers on the draft for the amount of its loss, and recovered judgment against all of them, from which an appeal was taken and a supersedeas bond executed with A. B. Poe and A. J. Graham as sureties. Upon the hearing in the Supreme Court, the judgment against the sureties on the bond of the insurance company was reversed, and the cause dismissed as to them, and the judgment against the insurance company and Poe and Driver as indorsers on the draft given in payment by the adjuster was affirmed and judgment entered, also against A. B. Poe and Graham as sureties on the supersedeas bond. American Ins. Co. v. McGehee Liquor Co., 93 Ark. 62, 124 S. W. 252, 20 Ann. Cas. 855.

The matter next appeared in this court upon a motion or petition of said Poe and Graham, asking this court to quash an execution issued by its clerk on the ground that the judgment had been satisfied. It was alleged that, after the affirmance of the judgment, an execution was issued thereon, and same was satisfied, and the judgment paid either by the insurance company or one of the sureties on the bond later alleged to be W. B. Calhoun; that the judgment was assigned to him by the plaintiff, and in turn to the German Investment Company. It was further alleged that one of the attorneys for the judgment creditor caused the execution notwithstanding it had been paid returned unsatisfied, and then procured an assignment of the judgment from the liquor company for the purpose of defrauding the petitioner and preventing him from enforcing his right of contribution against the sureties for amounts that he had paid out for the insurance company on other judgments. The response denied that the judgment had been satisfied and the other allegations of the petition, except as to the assignment of the judgment, and contained the statement that after the case had been appealed to the Supreme Court, and before the reversal of the judgment as to the sureties on the bond, an execution had been issued from the Pulaski circuit court to the sheriff of Mississippi county against W. B. Calhoun, one of the sureties on the insurance company's bond and against whom judgment had been rendered, and that he, to prevent the sale of his property, satisfied said execution, and the judgment was assigned to him, as appears from the record of same upon the margin thereof. This court held it would not be proper to strike out the assignment of the judgment unless it was shown that judgment had been satisfied, and that, although there was an allegation in the petition...