Austin v. Goodbar Shoe Company

• Decision Date: 27 April 1895
• Citation: 30 S.W. 888,60 Ark. 444
• Parties: AUSTIN v. GOODBAR SHOE COMPANY
• Court: Arkansas Supreme Court

30 S.W. 888

60 Ark. 444

AUSTIN v. GOODBAR SHOE COMPANY

Supreme Court of Arkansas

April 27, 1895

Appeal from Pope Circuit Court JEREMIAH G. WALLACE, Judge.

STATEMENT BY THE COURT.

On the 7th October, 1892, appellee filed its complaint against Kinedy & Evans, merchants doing business in the town of Atkins, in the Pope county circuit court, and at the same time filed its affidavit for an order of attachment as for debt not yet due and its cost bond, and the order was issued and delivered to the sheriff at 7 p.m. of that day. On the same day the appellant filed its complaint, affidavit attachment and bond, and caused to be issued an order of attachment against the property of Kinedy & Evans, and the same was placed in the hands of the sheriff at 11 p.m. of that day. Both orders of attachment were levied immediately after they were respectively delivered to the sheriff, and in the order of their delivery, and upon the same property--a stock of goods, wares and merchandise.

On the 4th day of April, 1893, all defenses having been withdrawn judgment for its debt and on the attachment was rendered in favor of the appellee, and on the same day like proceedings were had in favor of the appellant.

In the case of Goodbar Shoe Co. v. Kinedy & Evans, after the rendition of the judgment as aforesaid, the court made a distribution of the funds in court derived from the sale of the property in question, directing payment first to be made to the appellee as the senior attaching creditor.

On the 5th day of April, 1893, in term time, appellant filed its intervention, calling in question the correctness of the order of distribution in treating appellee as senior attaching creditor as aforesaid, and alleged and showed that the appellee had failed to give an attachment bond before the issuance of the writ or order in its case, and that therefore, its judgment in attachment was null and void; that the error was a fatal one, the filing of the bond being a jurisdictional act. The error was confessed by the appellee but issue was taken on its materiality, appellee claiming that it was a mere irregularity, and not jurisdictional, and that, therefore, it was not an issue to be raised by appellant in this proceeding.

The intervention and response were heard by the court on the 20th April, 1893, and judgment was for the appellee (respondent), and appellant took its appeal to this court.

Judgment affirmed.

Jeff Davis for appellant.

A bond must be filed before an attachment can issue. Sand. & H. Dig. sec. 328. It is a prerequisite. Drake on Att. secs. 114, 115, 116. There must be an affidavit and bond, and, unless both these requisites are complied with the writ is void, and, if void, can be taken advantage of by any person interested in the property attached.Drake on Art. sec. 116; 57 Ark. 541, 546; 53 id. 140.

J. E. Joyner for appellee.

A failure to file a bond is only an irregularity, of which no one except the defendant himself can take advantage. Intervenors cannot complain. 47 Ark. 45; 6 id. 472; 25 id. 56; 37 id. 215; Freeman on Judg. sec. 91; 22 F. 65; 10 Wall. 308.

OPINION

BUNN, C. J., (after stating the facts.)

The only question in this case is as to the effect the failure to give the attachment bond had upon the judgment in attachment in favor of appellee.

In Ford v. Hurd, 4 S. & M. 683, the Supreme Court of Mississippi held, on the motion of a garnishee, that, when no bond has been filed, a judgment in attachment was absolutely void. So in the case of Houston v. Belcher, 12 S. & M. 514, the same court held, on the motion of a non-resident, that the judgment was void where no bond had been filed. It is to be remarked, however, that in Mississippi they have a statute which expressly declares a judgment void where no attachment bond has been given.

In Kentucky, they have a statute similar to the one in Mississippi, and formerly the strict rule was applied as in Mississippi. Martin v. Thompson, 6 Ky. 252, 3 Bibb 252; Samuel v. Brite, 10 Ky. 317, 3 A.K. Marsh. 317. But afterwards the rule was relaxed, and the Supreme Court of Kentucky, in Banta v. Reynolds, 42 Ky. 80, 3 B. Mon. 80, held that the expression in the statute making judgments in such cases void was incautiously inserted therein, and that it could only mean that such judgments were voidable.

In Wagener v. Booker, 31 S.C. 375, 9 S.E 1055, the Supreme Court of South Carolina, where the statute is not exactly similar to ours, but rather more strict, held that the failure to file a bond, properly signed by the plaintiff, was jurisdictional error, and, on motion of defendant, the judgment was set aside. And yet in the case of Camberford v. Hall, 14 S.C. L. 345, 3 McCord 345, the same court said: "It has been repeatedly decided by this court that the garnishee cannot take advantage of any errors or irregularities in the proceedings against the absent debtor. The protection which the law has furnished to the property of the absent debtor is intended for his benefit, and not that of a third person. The bond which the law requires is to shield him from unjust suits; if he, therefore, does not think fit to complain that the bond has not been taken in conformity with the requisitions of the act, why should any other be permitted to do so? But it is said the act declares the attachment void, if the bond be not taken in double the sum to be attached; and that, the bond not being so taken, ...