McCart v. Scruggs

28 S.W.2d 537

Opinions

LEDDY, J.

It is suggested in defendant in error’s motion for rehearing that the judgment of the trial court, which we affirmed on original hearing, does not protect him against a double recovery, in that plaintiff in error is awarded a judgment against him upon which she is entitled to have execution immediately issued, before having paid off and satisfied the .judgment in favor of the paving company and that under such judgment it would be possible for plaintiff in "error to collect the amount of her judgment against him and not satisfy the judgment in favor of the paving company, leaving him liable to others on his warranty.

We conclude the judgment is subject to the criticism made and should be modified to the extent that execution should be stayed on plaintiff in error’s judgment against defendant in error until she 'has paid off and satisfied the judgment in favor of the paving company.

Accordingly, we recommend that plaintiff in error’s motion for rehearing be granted, to the extent that the judgment of the trial court' be modified so as to provide that execution shall not issue in favor of plaintiff in error upon her judgment against defendant in error until she has paid off and satisfied of record the judgment rendered in favor of the paving company 'herein. In all other respects the motion. for rehearing is overruled.