87 Ark. 418 | Ark. | 1908
(after stating the facts). The complaint avers that Chaudoin was the agent of appellant, and as such had in his hands funds belonging to appellant which he deposited with the Faulkner County Bank, falsely and fraudulently claiming to be the owner thereof, that judgment was afterwards without notice . to appellant falsely and fraudulently obtained by Chaudoin against the bank for the amount of the funds so deposited, that the bank would pay the judgment to Chaudoin, and that Chaudoin was insolvent. These allegations were sufficient to give appellant a remedy in' equity to restrain Chaudoin from) collecting and the bank from paying the amount of the judgment. The complaint must be tested on demurrer by its own allegations, and these stated a cause of action. See Himstedt v. German Bank, 46 Ark. 537. There are no allegations in the complaint showing that appellant was a party to the suit between Chaudoin and the Bank, and no allegations showing that the matters set f orth in the complaint were or that they might have been adjudicated in that suit; so the complaint was good on demurrer.
But, even if the answer should be treated as a plea of res judicata, it is not sufficient. Its allegations do not -show that the matters set forth in the complaint were, or should have been, raised in the suit before the justice and circuit court. Although appellant asked to be made a party to that suit and to be allowed to interplead, its request was not granted, and the matters in controversy here were not adjudicated. This was not a suit by Chaudoin to recover specific funds from the bank, but simply to recover judgment for the funds he had deposited. . As between him and the bank, the relation of creditor and debtor existed. Himstedt v. German Bank, supra. Fven though appellant might have been a proper party to that suit, it was certainly not a necessary party. Therefore the failure of appellant to appeal from the ruling of the court refusing to allow it to be made a party to that suit does not preclude appellant from proceeding in equitv to enjoin the enforcement by Chaudoin of the judgment which he then-obtained again-st the bank.
The court erred in sustaining the demurrer and in dismissing appellant’s complaint. Reversed and remanded for further proceedings not inconsistent with the opinion.
