Opinion
6 Div. 817.
November 21, 1918.
Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.
Frank S. White Sons, of Birmingham, for appellants.
Z. T. Rudolph, of Birmingham, for appellee.
Upon the former appeal in this cause (Jaffe v. Fidelity Deposit Co., 7 Ala. App. 206, 60 So. 966), it was held by the Court of Appeals that, notwithstanding the plaintiff failed to obtain a judgment against the obligors in the bond at the time of the rendition of the judgment against the defendant Koplin Iron Company, as was authorized by section 4313 of the Code of 1907, yet the plaintiff could still maintain an independent action on said bond; the statutory remedy not being exclusive.
It is strenuously insisted upon this appeal that this ruling was erroneous, and the former decision should not be followed. We have carefully considered the opinion of the Court of Appeals on the former appeal of this cause, and have reached the conclusion that the holding there was correct. We enter into no discussion of the question, but content ourselves with the approval of what was there said. The demurrers were therefore properly overruled.
The Koplin Iron Company was the principal obligor upon the bond upon which this suit is based, and we see no impropriety in having said company made a party defendant in this action together with the surety, Fidelity Deposit Company, notwithstanding the amount involved may be the same, with interest added, as that embraced in the original judgment against the Koplin Iron Company, which remains unsatisfied. We find no error in the record, and the judgment is accordingly affirmed.
Affirmed.
McCLELLAN, SAYRE, and SOMERVILLE, JJ., concur.