Bank of Eudora v. Ross

• Decision Date: 04 May 1925
• Docket Number: 344
• Citation: 271 S.W. 703,168 Ark. 754
• Parties: BANK OF EUDORA v. ROSS
• Court: Arkansas Supreme Court

271 S.W. 703

168 Ark. 754

BANK OF EUDORA v. ROSS

No. 344

Supreme Court of Arkansas

May 4, 1925

Appeal from Chicot Chancery Court; E. G. Hammock; Chancellor reversed.

Decree reversed, and cause remanded.

W W. Grubbs, for appellant.

Cook & Trice, for appellee.

OPINION

MCCULLOCH, C. J.

T. E Ray conveyed certain lands in Chicot County to S. A. Wilson by warranty deed, which recited notes executed by Wilson to Ray for unpaid purchase money. These notes were assigned by Ray to appellant, and Wilson subsequently conveyed the land to appellee Ross and one Van Ness, the grantees expressly assuming payment of said purchase money notes. The notes were not paid, and appellant instituted this action against Van Ness and appellee Ross to recover the amount of the notes and to enforce the vendor's lien. At the commencement of the action appellant filed allegations and interrogatories to the Monroe County Bank and the First National Bank of Fort Smith, respectively, as garnishees, and writs of garnishment were duly issued and served, and each of the garnishees reported that it had funds in its hands belonging to appellee Ross. Ross appeared by attorneys and filed an answer on the merits, denying the allegations of the complaint with respect to his having assumed the payment of the notes held by appellant, and also filed a motion to quash the garnishments. The court sustained the motion and dismissed the garnishments, and an appeal has been prosecuted to this court.

The effect of the dismissal of the garnishments was to end the proceedings as to those parties, and was a final order, and appealable. Helton v. Howe, 162 Ark. 243, 258 S.W. 391.

Appellee relies on the rule in some jurisdictions, and the one said to prevail generally in the absence of statute, that a personal judgment should not be rendered in a suit to foreclose a mortgage or other lien except for the deficiency after the report of the sale of the property showing that the amount realized from the sale was not sufficient to pay the debt. Cases in support of that contention are cited in the brief of counsel. Conceding that such is the general rule, it is changed by the statutes of this State. Crawford & Moses' Digest, §§ 6240, 6242, 6244. The first section mentioned above provides that it shall not be necessary in such proceeding to enter an interlocutory judgment, "but final judgment may in such cases be given in the first instance." Section 6242 reads as follows: "In an action on a mortgage or lien, the judgment may be rendered for the sale of the property and for the recovery of the debt against the defendant personally." Section 6244 provides that, if the mortgaged property "does not sell for a sum sufficient to satisfy the amount due, an execution may be issued against the defendant, as on ordinary judgments." The...