{ "id": 1344043, "name": "Prairie Creek Coal Mining Company v. Kittrell", "name_abbreviation": "Prairie Creek Coal Mining Co. v. Kittrell", "decision_date": "1913-03-31", "docket_number": "", "first_page": "361", "last_page": "363", "citations": [ { "type": "official", "cite": "107 Ark. 361" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "25 Ark. 353", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1864570 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/25/0353-01" ] }, { "cite": "106 Ark. 138", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1345592 ], "opinion_index": 0, "case_paths": [ "/ark/106/0138-01" ] } ], "analysis": { "cardinality": 261, "char_count": 4324, "ocr_confidence": 0.458, "pagerank": { "raw": 1.2901886966511314e-07, "percentile": 0.6196214528337366 }, "sha256": "525249ef87e5349bd60a6f50da147ddb6d2fda2b913315f9fe87cda445595487", "simhash": "1:3e08ff55601ea92b", "word_count": 709 }, "last_updated": "2023-07-14T20:18:15.327905+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Prairie Creek Coal Mining Company v. Kittrell." ], "opinions": [ { "text": "Per Curiam,\nAppellant gave a supersedeas bond, and the judgment was affirmed. Prairie Creek Coal Mining Co. v. Kittrell, 106 Ark. 138.\nThe surety on the supersedeas bond now moves this court for summary judgment against appellant, alleging that the amount of the affirmed judgment has been paid by said surety.\nThe question arises whether or not this court has authority to render such judgment.\nThe only statute which in express terms authorizes this court to render summary judgment on a supersedeas bond only provides for judgment against the sureties. Kirby\u2019s Digest, \u00a7 1235.\nThe statute now relied on by the moving party is taken from the Civil Code and reads as follows:\n\u201cJudgments and final orders may be obtained, on motion, by sureties against their principals; sureties against their co-sureties, for recovery of money due them on account of payments made by them as such; by clients against attorneys; plaintiffs in executions against sheriffs, constables and other officers, for the recovery of money or property collected for them and damages, and in all other cases specially authorized by statute.\u201d Kirby\u2019s Digest, \u00a7 4480.\nSucceeding sections specify the length of notice to be given and the form thereof, and the time when the motion will be presented. There is no specification in the statute as to the; court wherein the motion shall be presented. The Digestors have, since the enactment of this statute, incorporated in the same chapter of the Digest the Act of January 15, 1857, having reference to summary judgments against sheriffs, coroners, constables and clerks for failure to pay over money and other delinquencies.\nThis court in Milor v. Farrelly, 25 Ark. 353, held that a proceeding against a sheriff under the Act of 1857 must be prosecuted in the county where the sheriff and the sureties on his bond reside, and not in the county where the original judgment was rendered.\n. Other provisions found in chapter 137 Revised Statutes, concerning the rights of sureties against principals and' against co-sureties, are brought forward into the Digest. Kirby\u2019s,Digest, \u00a7\u00a7 7924-7929.\nSection 7925 provides that, when payment shall be made by a surety in money, he may \u201crecover the same, with interest, in an action for so much money paid to the use of defendant.\u201d\nSection 7928 provides that where \u201cjudgment is given in any circuit court upon any bond, bill or note, for the payment of money or the delivery of property against the principal debtor and sureties therein, and such surety shall pay the judgment, or any part thereof, he shall be entitled, upon motion, to judgment in the same court against the principal debtor for the amount he is entitled to recover. \u2019 \u2019\nIt is unnecessary for us to determine the relation between these various sections of the statutes. Suffice it to say that there is, as before stated, no statute which, in express terms, authorizes this court to render summary judgment in such cases, and the above-quoted statute taken from the Civil Code can not be construed as giving that authority..\nThis court held- in Milor v. Farrelly, supra, that the summary remedy conferred by statute is in derogation of the common law and must be strictly construed. Therefore, express authority must be found in the statute before the power can be exercised.\nWhether the rendition of such judgment would be the exercise of original jurisdiction, which is beyond the power of the Legislature to impose upon this court, we need not decide. But in the absence of express statutory authority the court finds itself unauthorized to render summary judgment. Motion overruled.", "type": "majority", "author": "Per Curiam," } ], "attorneys": [ "Hill, Brizzolara & Fitzgerald, for the surety.", "Bead & McDonough, for appellant." ], "corrections": "", "head_matter": "Prairie Creek Coal Mining Company v. Kittrell.\nOpinion delivered March 31, 1913.\nSummary judgment against principal on supersedeas bond\u2014motion by surety.\u2014The suretjr on appellant\u2019s bond superseding a judgment of the circuit court, when the judgment is affirmed in the Supreme Court, and the surety paid the judgment, will not be given a summary judgment against the appellant for the amount paid by him. Express authority for a summary judgment must be found in the statute. Kirby\u2019s Digest, \u00a7 \u00a7 1235, 4480, 7925, 7928, held not to grant such express authority.\nAppeal from Sebastian Circuit Court; Daniel Hon, Judge;\nmotion overruled.\nHill, Brizzolara & Fitzgerald, for the surety.\nBead & McDonough, for appellant." }, "file_name": "0361-01", "first_page_order": 379, "last_page_order": 381 }