James v. Kitzenger & Co.

THOMAS, J. The reporter will set out count 2 of the complaint, which fully states plaintiff’s case. (1) The court overruled defendants’ demurrers to this count, and we think properly so. They proceed chiefly on the theory that the remedy provided by- section-4725 of the Code for obtaining judgments against sureties on an appeal bond is an exclusive remedy, and that therefore an independent action on the bond, as this is, cannot be resorted to. In the recent case of Jaffe v. Fidelity & Dep. Co., 7 Ala. App. 206, 60 South. 966, we decided adversely to appellants practically the same questions raised-by the demurrers here, and we find no good reason, why we should now depart from that rul [451] ing.—Code, § 4725; Jaffe v. Fidelity & Dep. Co., supra. (2) It is insisted that, if an action on the bond can be maintained at all, it can only be done after a demand for its payment; but we are cited to no authority, and know of none, so holding. We find the general rule, which is applicable to the contract here sned on, to be to the contrary.—9 Am. & Eng. Ency. Law (2d Ed.) 199; Garnett v. Roper, 10 Ala. 842. After the overruling of their demurrers to the complaint, the defendants pleaded thereto the general issue and three special pleas, to each of which special pleas a demurrer was sustained — properly so, we think. Two of these special pleas sought to raise practically the same questions as were raised by the demurrer to the complaint; one setting up that the plaintiff by obtaining judgment against the principal obligor in the bond and by failing to obtain a judgment against the sureties, on the trial of the appeal which the bond was given to secure, released the sureties; and the other setting up that the plaintiff by so doing estopped himself from prosecuting this action on the bond against the sureties. The case of Jaffe v. Fidelity & Dep. Co., supra, disposes of, as before said, these questions contrary to the contention of appellants. (3) The other special plea set up that the principal in the bond — the American Cloak & Suit Company— against whom plaintiff obtained the judgment on Juné 20, 1912, on the trial of the appeal, which the bond was given to secure, was subsequently adjudicated a bankrupt on, to wit, August 12, 1912, and was later on, to wit, June 2, 1914, discharged from liability on all debts, judgments, etc., provable against it under the Bankruptcy Act. The adjudication and discharge in bankruptcy of the principal was, as will be observed, after judgment [452] had been obtained against it on the trial of the appealed case, and this suit is, as seen, a common-law action on the appeal bond against its sureties for a failure to comply with the terms' of the bond, which bound them to pay the judgment obtained against the principal. Clearly, therefore, the case of Young v. Howe, 150 Ala. 157, 43 South. 488, where no judgment on appeal had been obtained, and where on the trial of such appeal the plea of a discharge in bankruptcy was filed by the principal, the defendant on appeal, to prevent such a judgment, has no application. The terms of an appeal bond bind the sureties “to pay such judgment, both as to debt and costs, as may be rendered against the principal on the trial of the case on appeal,” and when, as here, a judgment has -been obtained against the principal on such appeal, his. subsequent discharge by operation of law from the payment of such judgment, as by bankruptcy, while it relieves him (Ellis v. Mobile, etc., 166 Ala. 187, 51 South. 860), does not operate to discharge the sureties from their obligation to- pay that judgment. —(Garnett v. Roper, 10 Ala. 842; Leader v. Mattingly, 140 Ala. 444, 37 South. 270; State v. Parker, 72 Ala. 183; Smith v. Gillam, 80 Ala. 300; Mount v. Stewart, 86 Ala. 365, 5 South. 582; 16 Am. & Eng. Ency. Law [2d Ed.] 792, and cases cited in note 5). (4) On the other hand, where the principal, on the trial of the case on appeal, prevents a judgment from being obtained against him by pleading his discharge in bankruptcy, then the sureties are not liable on the bond, because the condition to their liability as fixed in the bond, to wit, a judgment against the principal, has not been met.—Young v. Howe, supra. As to the last contention of appellants, to the effect that the court erred in declining, as recited in the judg [453] ment entry, to permit them, during the progress of the trial, to amend one of their special pleas, it need only be said that it nowhere appears that any exception was taken to the action of the court in this particular; the appeal here being on the record proper without a bill of exceptions. Affirmed.