Sims v. Toler, Judge

George Rose Smith, J., concurring. By a different line of reasoning I reach the same result as the majority of the court. The Kornegay ease held that the court first acquiring jurisdiction of the cause of action has the exclusive power to proceed to judgment. Here the question as I see it is whether the Grant Circuit Court, by virtue of Perry’s suit against Malone, acquired jurisdiction of Perry’s cause of action against Sims. If the liability of Malone and Sims were joint only, a serious question would be presented. But they are charged as joint tortfeasors, and of course their liability as such is joint and several. Though Perry could obtain only one satisfaction, he had the option of suing Malone and Sims jointly or proceeding against them separately. McCulla v. Brown, 178 Ark. 1011 , 13 S. W. 2d 314 . The outcome of the Malone suit would not affect his claim against Sims. Best., Judgments, § 94. It follows that Perry’s cause of action against Sims was not involved in his suit against Malone alone, and hence the Conway Circuit Court first acquired jurisdiction of their controversy.