Allen v. Stracener
| Decision Date | 21 February 1949 |
| Docket Number | 4-8666 |
| Citation | 217 S.W.2d 620,214 Ark. 688 |
| Parties | Allen v. Stracener |
| Court | Arkansas Supreme Court |
Appeal from Conway Circuit Court; Audrey Strait, Judge.
Affirmed.
Gordon & Gordon, for appellant.
Chas. C. Eddy and Chas. L. Farish, for appellee.
OPINION
Appellant sued for damages for personal injuries resulting from gunshot wounds inflicted by appellee. Upon the filing of his complaint he obtained a writ of garnishment against a Morrilton bank. This appeal is from the circuit court's order dissolving the writ. The question presented is one of first impression: Is a writ of garnishment obtainable as a matter of course before judgment in a tort action against a resident of this State?
Appellant relies principally upon Ark. Stats. (1947), § 31-501 reading in part: "In all cases where any plaintiff may begin an action in any court of record . . . and such plaintiff may have reason to believe that any other person is indebted to the defendant . . . such plaintiff may sue out a writ of garnishment," with a proviso requiring bond when the writ is issued before judgment.
The letter of the statute undoubtedly supports appellant's position, but the Act is to be construed in the light of its legislative and judicial background. We have pointed out that garnishment is a species of attachment. Standard Lumber Co. v. Henry, 189 Ark. 513, 74 S.W.2d 226. In fact, the writ originated as an aid to attachment in instances where the property could not be manually seized, as in the case of a debt, or where it were better left in the possession of a bailee, as in the case of hides in the vat. At this stage in the writ's development the garnishee was not a party to the suit and so was not liable to judgment therein for disobedience of the writ; the plaintiff's recourse against the garnishee was by separate action. Later garnishment became an independent remedy, the garnishee being a party to the suit. The latter form is sometimes called judicial garnishment.
In view of the close relationship between attachment and garnishment, it would be somewhat surprising to find that the legislature had authorized the writ of garnishment in a tort action between residents while denying the remedy of attachment in the same situation. A study of the history of attachment and garnishment in Arkansas convinces us that this inconsistency does not exist in our law.
The Revised Statutes recognized both types of garnishment. Chapter 13, governing attachments, made frequent reference to garnishment proceedings as an aid to the principal writ. Chapter 69, entitled Garnishment, authorized the issuance of the writ after judgment had been entered in any case and provided for judgment against the garnishee in the original action.
Next came the Civil Code, adopted in 1868. Title VIII, governing provisional remedies, contemplated the writ of garnishment as an aid to attachment, but the Code wholly failed to provide for judicial garnishment. A section of Act 48 of 1871, now appearing as Ark. Stats. (1947), § 31-142, broadened the scope of the Code in some respects, but it was decided in Leingardt v. Deitz, 30 Ark. 224, that this statute applied before judgment only to the writ of garnishment in attachment proceedings. In 1885 the court suggested, without deciding, that the enactment of the Civil Code might have abolished judicial garnishment altogether, since the Code covered the field anew. Giles v. Hicks, 45 Ark. 271.
This, then, was the background when the General Assembly adopted Act 115 of 1889, "An Act to Provide the Procedure in Judicial Garnishment." It is almost a verbatim copy of Chapter 69 of the Revised Statutes, mentioned above. In view of our remarks in Giles v. Hicks, supra, it can hardly be doubted that the legislative intention was merely to revive judicial garnishment. By its terms the 1889 statute made the writ available only after judgment.
Finally by Act 134 of 1895 the legislature amended § 1 of the 1889 statute to read as it does now. One has only to compare the original section with the amendatory provision to see that the legislative purpose was to make judicial garnishment available before judgment as well as...
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...garnishment as a species of attachment. Lawrence v. Ford Motor Credit Company, 247 Ark. 1125, 449 S.W.2d 695; Allen v. Stracener, 214 Ark. 688, 217 S.W.2d 620. In Foster, we held garnishment to be a provisional remedy in the sense of the statute fixing the jurisdiction of such remedies by a......
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