Bank of Pangburn v. Tate

• Decision Date: 31 January 1921
• Docket Number: 142
• Citation: 227 S.W. 389,147 Ark. 292
• Parties: BANK OF PANGBURN v. TATE
• Court: Arkansas Supreme Court

227 S.W. 389

147 Ark. 292

BANK OF PANGBURN v. TATE

No. 142

Supreme Court of Arkansas

January 31, 1921

Appeal from White Chancery Court; J. E. Martineau, Chancellor reversed.

Decree reversed and cause remanded.

Brundidge & Neelly, for appellant.

The claims of appellant were prior to and paramount to that of the intervener, W. D. Tate, because (1) the agreed statement of facts shows that a writ of attachment was issued on December 19, 1919, and levied January 1, 1920, upon Pierce's equity in the property, while appellee's transcript from the justice of the peace court was not filed in the clerk's office until afterward and was never entered on the judgment docket of the circuit court. Appellant's attachment was the prior and paramount lien. 38 Ark. 421; 40 Ark. 129.

Miller & Yingling and W. D. Davenport, for appellee.

1. The appellant has no right to complain against the decree. He is trying to collaterally attack the judgment of appellee in the justice of the peace court. This can not be done by anyone except the defendant, Pierce. 47 Ark. 31; 63 Id 157; 62 Id. 171.

2. Appellee's lien became complete from the time the writ of attachment was levied upon the equity of the defendant. Appellant had notice of this lien December 8, 1919. Here the sale of the lot had already been made, and no sale of the lot is asked. 83 Ark. 419, does not sustain appellant. The statute does not provide that the lien once acquired by the issue and levy of attachment shall be destroyed unless the case is at once docketed on the common-law docket, but simply provides that before the clerk shall have authority to issue an order for the sale of the land under the attachment the cause must be docketed and must show that it is an attachment. This is a proper construction of the statute, as it conforms to art. 7, § 40, Constitution of 1874.

3. The attachment by appellee of the lot was regular, has the sanction of the law and is not void. An attachment affidavit can be amended, and this was done by the new affidavit. 37 Ark. 560. These sections are conclusive of the right of appellee to have the second attachment issued and levied. Appellee, in all things, complied with our statutes. Section 465 is as mandatory as § 6383, and both provide a simple method to reach both real and personal property. The decree is correct.

OPINION

HUMPHREYS, J.

This appeal involves the priority of liens growing out of writs of attachment levied upon the equitable interest of J. W. Pierce in lot four, block two, Skillern's addition to Pangburn Arkansas. Appellant enforced a vendor's lien note, in the sum of $ 450, which he had purchased, against said property on the 28th day of February, 1920. After paying the indebtedness and costs, there remained in the hands of the commissioner $ 265.82.

Prior to the institution of the foreclosure suit, appellant had instituted a suit against J. W. Pierce in the White Circuit Court for $ 1,500 and obtained a writ of attachment, on the 19th day of December, 1919, which was levied upon the equity of J. W. Pierce in said real estate on January 1, 1920. Based upon this proceeding, appellant filed an intervention in the foreclosure suit for the surplus remaining in the commissioner's hands.

Prior to the institution of either suit, appellee brought an attachment proceeding against J. W. Pierce before a magistrate in said county. A warning order was issued in the proceeding against J. W. Pierce, who was a nonresident, and the attachment was levied by the constable of the township upon personal property belonging to the said J. W. Pierce. Pierce made default, the attachment was sustained, and the personal property condemned and sold under an order of court to satisfy appellee's claim, but only sold for sufficient to pay $ 173.40 thereon,...