Wilson v. White

• Decision Date: 22 April 1907
• Citation: 102 S.W. 201
• Parties: WILSON v. WHITE.
• Court: Arkansas Supreme Court

102 S.W. 201

WILSON v. WHITE.

Supreme Court of Arkansas.

April 22, 1907.

Appeal from Circuit Court, Hempstead County; Joel D. Conway, Judge.

Action by James L. White against M. W. Wilson. From a judgment for plaintiff, defendant appeals. Affirmed.

Etter & Monroe, for appellant. O. A. Graves and Jobe & Eakin, for appellee.

McCULLOCH, J.

The plaintiff, James L. White, was formerly sheriff of Hempstead county, and, after the expiration of his term of office, he instituted this action against the defendant, M. W. Wilson, as surety on a note in the following form, executed for the amount of a fine and costs adjudged by the circuit court of that county against J. J. Robertson, the principal: "On or before the first day of October, 1901, I, Joe Robertson, principal, M. W. Wilson, sureties, promise to pay to James L. White, sheriff of Hempstead county, Ark., the sum of $240.10, the amount of fine and cost adjudged against the said Joe Robertson, in two cases by the state of Arkansas, at the April term 1901 of the Hempstead circuit court. J. J. Robertson, Principal. M. W. Wilson, Sureties." This note was filed in the office of the circuit court clerk immediately after its execution, and it bears the indorsement of the clerk showing that fact:

The plaintiff alleges in his complaint that the county court charged him with the amount of said fine and cost against Robertson, and compelled him to pay it, and that he did pay it. The defendant interposed a demurrer to the complaint, on the following grounds, to wit: "First. That the plaintiff was never liable to pay the note upon which this suit is brought, and had no right to assume the indebtedness represented by the same, and has now no legal capacity to bring or maintain this suit. Second. That there is a defect of parties plaintiff in this cause, and that, if this suit should be brought at all, it should be brought for the use and benefit of Hempstead county; whereas, the plaintiff has assumed the indebtedness, as he claims, and now sues in his own right and capacity. Third. That the plaintiff's complaint does not state facts sufficient to constitute a cause of action." The court overruled the demurrer, and the defendant filed his answer, in which he denied that plaintiff was liable for, or had been compelled to pay, the amount of the note to the county; and alleged that after the note matured Robertson, the principal, was solvent, and continued to be solvent until he was subsequently adjudged a bankrupt and discharged in bankruptcy; that he had sufficient property in the county subject to execution out of which the debt could have been made, and defendant had made demand upon plaintiff to issue execution against Robertson and levy the same on his property, but that plaintiff had failed and refused to do so; and that plaintiff had permitted Robertson to sell and dispose of his property without making any effort to collect the debt from him. The case was tried before a jury, and a verdict in favor of plaintiff for the amount of the note and interest was returned.

The evidence shows that Robertson was discharged in bankruptcy some time after the note became due, and the testimony is conflicting as to whether or not he was solvent at any time after the maturity of the note. The court refused to give instructions asked by defendant, to the effect that, if plaintiff had notice of the bankruptcy proceedings, and failed to file the note as a claim against the Robertson's bankrupt estate, he could not recover from the defendant. The court also refused to give the following instruction asked by the defendant: "No. 9. You are instructed that if you believe from the evidence that the plaintiff, J. L. White, levied execution upon the property of the said J. J. Robertson, and afterwards stayed said execution, and the lien on said Robertson's property was thereby lost, and the defendant, M. W. Wilson, deprived of his right or power to be indemnified out of the property of the said Robertson, you will find for the defendant."

The note was not in form or substance such as is provided for by statute. The statute provides that, whenever any person shall be convicted of a misdemeanor, he may give security, to the satisfaction of the sheriff, constable, or other officer, for the payment within 30 days of the fine and cost (Kirby's Dig. § 1091); and that the officer taking such security "shall forthwith file with the court or justice of the peace rendering the judgment the bond or note so taken, which bond or note when so filed shall have the force and effect of a judgment, and if the same be not satisfied at the maturity thereof, the clerk of the court, or justice of the peace, as the case may be, shall issue an execution against the defendant and the said sureties." Kirby's Dig. § 2475. Now, the note in controversy failed, in two respects, to conform to the statute, viz.: It was not payable to the state of Arkansas, and the same was not made payable within 30 days. It did not, therefore, have the force and effect of a judgment under the statute. Dillard v. Nelson, 78 Ark. 237, 95 S. W. 460; Lowenstein v. McCadden, 54 Ark. 13, 14 S. W. 1095; 4 Am. & Eng. Ency. Law, p. 667. But it is valid as a common-law obligation, and binds the principal and surety for the payment of the amount named therein. 13 Am. & Eng. Ency. Law, p. 1139; 27 Am. & Eng. Ency. Law, pp. 448, 539, and cases cited. The statutes of this state make it the duty of sheriffs to collect all fines, penalties, and forfeitures adjudged against defend...