{
  "id": 8724939,
  "name": "Oliver v. Franklin Fire Insurance Company of Philadelphia",
  "name_abbreviation": "Oliver v. Franklin Fire Insurance Co. of Philadelphia",
  "decision_date": "1938-03-14",
  "docket_number": "4-4822",
  "first_page": "840",
  "last_page": "843",
  "citations": [
    {
      "type": "official",
      "cite": "195 Ark. 840"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 361,
    "char_count": 5304,
    "ocr_confidence": 0.513,
    "sha256": "78d61754cf59487c41053c154dd6dc2fa5dcf8c58d35c5e7a3fee9e2e53abdda",
    "simhash": "1:f576d3b990ffd93b",
    "word_count": 870
  },
  "last_updated": "2023-07-14T23:00:53.579177+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Oliver v. Franklin Fire Insurance Company of Philadelphia."
    ],
    "opinions": [
      {
        "text": "Grieein Smith, C. J.\nW. M. Hudson was appointed sub-agent for the Franklin Fire Insurance. Company of Philadelphia, and on June 20,1930, executed.bond, a condition being that he would pay the insurance company all sums of money properly chargeable to him. Sureties were J. D. Oliver and L. A. Edwards.\nIn 1933, the company alleged an indebtedness of $497.82 and brought suit in Lonoke circuit court. Defendants were W. M. Hudson, J. D. Oliver, and Mrs. Ava B. Parks. Edwards died in 1931 and Mrs. Parks was sued as administratrix. In her answer Mrs. Parks pleaded the statute of nonclaims.\nOn September 8, 1933, judgments were rendered against Hudson and Oliver. The judgment recites that Hudson failed to appear, hut that Oliver, by his attorney, John B. Thompson, agreed to the proceedings.\nAlleging that on June 28,1934, Hudson owed an additional $175, the insurance company brought a second action in circuit court which by consent was transferred to equity. This suit was ag;ainst Hudson as principal and Oliver as surety, and the Bank of Cabot as garnishee. On January 26, 1937, the chancellor gave judgment in favor of appellee insurance company for $175, and' directed that the garnishee pay appellee $200, the amount found on deposit to Oliver\u2019s credit.\nAppellant urges as grounds for reversal that four errors were committed, as follows: (1) That subsequent to execution of the bond and without appellant\u2019s knowledge, the penalty Avas increased from $500 to $1,000. (2) That when appellee recovered in 1933 the obligations noAv contended for were known to appellee, and should have been included in that suit. (3) That the 1933 judgment should be set aside. (4) That failure of appellee to proceed against the Edwards \u2019 estate before the statute of non-claim destroyed the remedy was tantamount to a release of one surety, and this would have the effect of releasing the other.\nW. M. Hudson testified that, while $500 Avas the amount printed on the bond form, this Avas erased and $1,000 substituted therefor before the sureties subscribed to it. G. M. Craig, appellee\u2019s state agent, testified as did Hudson. He prepared the contract and bond. Appellant, Avhile testifying that the bond was for $500, was not certain. He said: \u201cI had always understood it to be a $500 bond. I had no reason to investigate to see, but Hudson told me at the time I signed it that it was a $500 bond. To the best of my knowledge it was. not for $1,000. \u2019 \u2019 Asked on cross-examination if he was in position to tell the court that the account s'ued on was not the amount due the'company, appellant answered \u2018\u2018\u2018No.\u201d\n\u2018 The evidence was sufficient to establish verity of the bond \u2014 that there had been no alterations subsequent to its execution.\n\u25a0 Gr. M. Craig identified the indebtedness for which judgment was given in 1933. He said: \u201cAfter that suit was filed and the money collected and the judgment satisfied, further' notes became delinquent under which there were return premiums . . . -.amounting to $175.\u201d\nAppellant testified that when he asked Craig why the company did not, in the first action, sue for the full amount, he replied in substance, \u201cWe could, but didn\u2019t want to.\u201d''\nThere was no testimony other than this statement imputed to Craig to show that a right of action on the items comprising , the $175 claim existed at the time the first suit was brought. The chancellor was correct in holding that the demand was not. res judicata.\nIt is urged that the 1933 judgment should be set aside because appellant was sick when court convened and had asked for a continuance; The judgment recites -that John R. Thompson represented appellant, and consented thereto. 'Appellant-.says Thompson was not employed,-by him in the sense that a fee was paid, but merely volunteered to look after appellant\u2019s interests in procuring a continuance.\nThe defense to that action is the same defense offered here \u2014 that the bond was altered. ' But the court found from a preponderance of testimony in the instant case that the bond was not forged. This, would dispose of the defense to the first suit. It follows that the court did not err in refusing to set the. judgment aside.\nFinally, it is contended that failure of appellee to proceed against the Edwards \u2019 estate had the effect of releasing appellant from his c\u00f3-suretyship. To separate-answer of Ava B. Parks,-administratrix, to the 1933 ' suit shows that letters'of administration were issued'July 14, 1931. \u25a0 Testimony'ofnGL-'M.-'Craig is that \u201c. . . After the judgment was satisfied, further notes, became.:dtelin-quent.\u201d The return premiums'on the motes referred to, in Craig\u2019s testimony make up the, item sued on in the instant case. The .first, judgment ,was rendered .Septemr her 8,1933. Therefore, the demands, with, .whicti, we are now dealing accrued subsequent to the judgment, and the bar of the statute of. nonclaims had. attached before ap-pellee\u2019s cause of action:aros,e.. .. .....\nSince, the record clearly reflects, that the chancellor, maticulously refrained from depriving, appellant of\u00a1 qi|y, of his equitable , or legal rights, the judgment must be. affirmed. It is.so ordered..^,",
        "type": "majority",
        "author": "Grieein Smith, C. J."
      }
    ],
    "attorneys": [
      "Madison K. Moran, for appellant.",
      "Joe P. Melton, for appellee."
    ],
    "corrections": "",
    "head_matter": "Oliver v. Franklin Fire Insurance Company of Philadelphia.\n4-4822\nOpinion delivered March 14, 1938.\nMadison K. Moran, for appellant.\nJoe P. Melton, for appellee."
  },
  "file_name": "0840-01",
  "first_page_order": 856,
  "last_page_order": 859
}