James v. Kitzenger & Co.
Alabama Court of Appeals
Assumpsit. Appeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Action by Harry Kitzenger & Company against O. W. James and another as sureties on an appeal bond. Judgment for plaintiff, and defendants appeal.
Read the full summary
Assumpsit. Appeal from Birmingham City Court. Heard before Hon. H. A. Sharpe. Action by Harry Kitzenger & Company against O. W. James and another as sureties on an appeal bond. Judgment for plaintiff, and defendants appeal. Count 2 is as follows: Plaintiff claims of defendants C. W. James and W. K. McAdory $187 for that on, to wit, July 17, 1911, said plaintiff did recover a judgment in the Birmingham court of common pleas against the American Cloak & Suit Company, a body corporate, for the sum of $80.55, besides the cost of the suit, and said American Cloak & Suit Company did appeal the said…
1Opinion of the CourtThomas, 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…
2Cases cited9 opinions
- Louisville & Nashville R. R. v. WilliamsSupreme Court of Alabama · 1911
- Smith v. GillamSupreme Court of Alabama · 1885
- Leader v. MattinglySupreme Court of Alabama · 1903
- State v. ParkerSupreme Court of Alabama · 1882
- Jaffe v. Fidelity & Deposit Co.Alabama Court of Appeals · 1913
4 more not listed; retrieve them via the Exa API.
3Cited by2 opinions
- Brown, Webb & Co. v. Edward Rose & Co.Supreme Court of Alabama · 1923
- Waller v. GwinAlabama Court of Appeals · 1933