Walker v. Files

• Decision Date: 11 April 1910
• Citation: 127 S.W. 739,94 Ark. 453
• Parties: WALKER v. FILES
• Court: Arkansas Supreme Court

127 S.W. 739

94 Ark. 453

WALKER v. FILES

Supreme Court of Arkansas

April 11, 1910

Appeal from Ashley Chancery Court; Zachariah T. Wood, Chancellor reversed.

STATEMENT BY THE COURT.

The plaintiff, A. W. Files, instituted this suit in the Ashley Chancery Court against the defendants, Floyd Walker, sheriff of Ashley County, J. W. Simpson and George Norman. The complaint alleges, in substance, the following:

That on the 10th day of May, 1907, George Norman brought suit in replevin against R. F. Manning and J. W. Simpson to recover possession of a lot of staves, and that A. W. Files became the surety on the bond of said Norman to obtain the delivery of said property. The case was tried at the January term 1908, of the Ashley Circuit Court, and the jury returned a verdict in favor of the defendant for the return of the staves in controversy or $ 250, their value, with interest thereon at the rate of 6 per cent. per annum from the 10th day of May, 1907. Whereupon the court rendered judgment in accordance with the verdict in favor of the defendant, J. W Simpson, against the plaintiff, George Norman, and A. W Files, the surety on his bond. That on the 17th day of November, 1908, said J. W. Simpson procured an execution to be issued on said judgment, directed to the sheriff of Ashley County, and the same was placed in the hands of Floyd Walker as such sheriff. That said Walker as such sheriff, on the 5th day of December, 1908, levied said execution on certain real estate of said A. W. Files in Ashley County, and advertised the same for sale on the 31st day of December, 1908. That said George Norman promised said A. W. Files to prosecute an appeal to the Supreme Court from the judgment in said replevin suit, but wholly failed and neglected to do so. That no demand was made of said A. W. Files to pay the judgment in said replevin suit, and that the first information that he had of the existence of said execution was on the 12th day of December, 1908, when he read the notice of the levy and sale. That he had no notice that judgment in said replevin suit had been rendered against him until December 19, 1908. That said George Norman is perfectly solvent, and has abundant property subject to levy and sale under execution to satisfy the judgment in said replevin suit. That plaintiff has demanded in writing of said Walker as such sheriff to levy said execution on the property of said Norman, and has pointed out to him sufficient of Norman's property subject to levy and sale to satisfy said execution, but that said Walker as such sheriff has refused to comply with his demands in that respect. That there is collusion between said Simpson, in person and by attorney, and said Norman and said Walker as such sheriff to compel plaintiff unjustly to pay said judgment in said replevin suit, interest and costs, and to protect and relieve said Norman from the payment thereof.

Plaintiff further alleges that his relief can only be had in a court of equity. His prayer was for a temporary restraining order which on final hearing is asked to be made perpetual.

A temporary restraining order was issued. The defendant Norman filed an answer to the complaint. This need not be abstracted for the reason that the issues made by it between him and the plaintiff have not been determined by the chancery court.

The defendants, J. W. Simpson and Floyd Walker, sheriff, as aforesaid, interposed a demurrer to the complaint. On the 25th day of May, 1909, the chancery court overruled the demurrer of said defendants, and made the temporary restraining order perpetual, or until said sheriff shall have levied upon the property of said Norman and have exhausted his remedy against him. Said defendants, Simpson and Walker, have duly prosecuted an appeal to this court.

Decree reversed and cause remanded.

George & Butler, for appellants.

When the appellee signed the bond as surety, he became a party to the proceeding, and was entitled to no further notice of the future progress of the suit. Kirby's Dig., § 6870; 68 Ark. 320; 66 Ark. 183. The creditor cannot be compelled to exhaust his remedy against the principal before proceeding against the surety. 22 Am. St. 39. Equity will not interfere in the absence of an allegation of fraud. 85 Ark. 508. Or an allegation of valid defense. 32 Ark. 438; 74 Ark. 292; 76 Ark. 582. The circuit court could have made any order necessary to protect appellee's rights. Kirby's Dig., § 3224; 34 Ark. 354; Id. 291. The surety, after paying the judgment, has a cause of action against his principal for the amount thereof. 16 Ark. 72; 32 Ark. 530.

Appellee, pro se.

Judgments may be enjoined for matters arising after the rendition thereof. 33 Ark. 161. The issuance of an injunction is an act of judicial discretion. 26 Ark. 613; 26 Ark. 510; 39 Ark. 82.

OPINION

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

The judgment against the plaintiff, A. W. Files, was rendered against him in the replevin suit pursuant to ...