94 Ark. 453 | Ark. | 1910
(after stating the facts). The judgment against the plaintiff, A. W. Files, was rendered against him in the replevin suit pursuant to section 6871 of Kirby’s Digest. When he signed the bond of Norman to obtain delivery of the property under section 6857 of Kirby’s Digest, he became a party to the replevin suit, and the judgment against him was not without jurisdiction. Glenn v. Porter, 68 Ark. 320.
• The demurrer admits the allegations of the complaint to be true. Stripped of its verbiage, the complaint presents only one real question for our determination, and that is, if a judgment creditor sees fit to levy upon and -sell the property of the surety of the judgment debtor first in satisfaction of his judgment, upon what principle will a court of equity prevent him ?
We have no statute prescribing that the property of the principal of the surety be first exhausted. The relation of principal and surety between Files and Norman created rights and duties as between themselves; but the question upon which we are called to pass is, does it affect third persons? As we have already seen, when the judgment in the replevin suit was rendered against Norman, the court, pursuant to section 6871, Kirby’s Digest, upon the motion of the defendant, Simpson, also rendered judgment against Files. Thereby Files became a joint debtor in the judgment and execution, and was under the same obligation as Norman to pay the judgment creditor. It was therefore, in the absence of a statute to the contrary, competent for the judgment creditor to cause the property of either to be levied upon and sold under execution to obtain satisfaction of his judgment. Whatever the equities between Norman and Filés may be, it could not affect the judgment creditor in the pursuit of his rights, and he clearly had the right to sue out an execution and have the same levied upon the property of either.
The rule at common law is that the “judgment creditor is at liberty to levy first upon the property of the surety if he choose to do so.” 32 Cyc. p. 143 and notes.
If, as we have already held, Files became a joint debtor with his principal and liable as such, he is equally subject to an execution, and the question of collusion between Simpson, the judgment creditor, and Norman and the sheriff does not arise, and is not an issue in the case; for the reason that Simpson has only adopted the means he is legally entitled to pursue to effect satisfaction of his judgment. For the same reason the allegation that Norman has property subject to- execution sufficient to satisfy the judgment and that he neglected to take an appeal from the judgment in the replevin suit does not entitle the plaintiff, Files, to relief in equity.
It is contended by appellee that the sale should be enjoined because the name of Simpson does not appear in the notice of sale. The execution was directed against both Simpson and Files, and the omission of Simpson’s name in the notice of sale was at most a mere irregularity, which could not affect the validity of the sale under the execution. It is well settled that an injunction will not issue because of a mere defect in the notice of sale. 6 Pomeroy’s Equity Jurisprudence, § 674; 2 Freeman on Executions (2 ed.), § 259.
Moreover, the circuit court had general supervisory jurisdiction over its own process, and the court out of which the execution issued or its judge in vacation could have made any order necessary to protect appellee’s rights. Kirby’s Digest, § 3224; Shaul v. Duprey, 48 Ark. 331, and cases cited.
It necessarily follows that the decree must be reversed, and the cause remanded with directions to sustain the demurrer, and dismiss -the complaint for ryant of equity.
