Citizens Bank of Mammoth Spring v. Commercial National Bank of Chicago

• Decision Date: 27 January 1913
• Citation: 155 S.W. 102,107 Ark. 142
• Parties: THE CITIZENS BANK OF MAMMOTH SPRING, ARKANSAS, v. THE COMMERCIAL NATIONAL BANK OF CHICAGO, ILLINOIS
• Court: Arkansas Supreme Court

155 S.W. 102

107 Ark. 142

THE CITIZENS BANK OF MAMMOTH SPRING, ARKANSAS, v. THE COMMERCIAL NATIONAL BANK OF CHICAGO, ILLINOIS

Supreme Court of Arkansas

January 27, 1913

Appeal from Fulton Circuit Court; John W. Meeks, Judge; reversed.

STATEMENT BY THE COURT.

On the 28th day of March, 1910, the Wood Grocer Company, of Mammoth Spring, Arkansas, instituted an action of attachment in a justice of the peace court against L. Starks Company, a foreign corporation, and sued out a writ of garnishment against the Citizens Bank of Mammoth Spring. On the return date of the attachment the Citizens Bank appeared in court and answered that it had in its possession the sum of two hundred forty-nine dollars and forty cents, the property of defendant, L. Starks Company. The Commercial National Bank of Chicago filed an intervention in the justice court, claiming said sum of $ 249.40 as its property. The justice of the peace found that the Commercial National Bank failed to state facts sufficient to entitle it to an investigation of its claim under section 391, Kirby's Digest, and dismissed its interplea.

The Citizens Bank was ordered to pay over the money in its hands to the Wood Grocer Company and the judgment then recites as follows: "And after this was done comes the interpleader and files its affidavit and bond for appeal to the Fulton Circuit Court, which is granted and the attachment is not appealed." The Citizens Bank signed the appeal bond as surety for the Commercial National Bank, and in it it is recited that "this appeal being on the part of said interpleader only." In the circuit court the Wood Grocer Company filed a motion to dismiss the interplea of the Commercial National Bank and the court dismissed the interplea with leave to the interpleader to amend it. Subsequently the Commercial National Bank filed an amended interplea verified by its oath. The Wood Grocer Company then filed a demurrer to the interplea. The court overruled the demurrer and the Wood Grocer Company stood upon the demurrer and declined to plead further. The circuit court after hearing the evidence, rendered a judgment in favor of appellee against appellant for the sum of $ 255, the amount of the fund which was garnished and which was found to belong to appellee.

Appellant Citizens Bank of Mammoth Spring, filed its complaint against appellee, Commercial National Bank of Chicago, in the Fulton Circuit Court, in which it set up the above facts and asked the court to vacate and set aside the judgment which it had heretofore rendered in favor of appellee against appellant in the sum of $ 255. Appellant alleges that the court had no jurisdiction to render the judgment sought to be set aside against it and the judgment is for that reason null and void. The complaint further alleges that the docket of the circuit judge in the case appealed from the justice of the peace, and in which judgment was rendered in favor of appellee against appellant for $ 255 is as follows: "Fourth day. Judgment for amount against Wood Grocery." That nowhere upon said minutes is it shown that any judgment was authorized to be rendered against appellant in any amount. The prayer of the complaint is that the judgment rendered against appellant in favor of appellee should be declared by the court void and the same is asked to be vacated and set aside.

Appellant demurred to the complaint. The court sustained the demurrer and ordered that the complaint of the appellant be dismissed. From the judgment rendered the appellant has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

D. S King, for appellant.

McCaleb & Reeder and C. E. Elmore, for appellee.

OPINION

HART, J. (after stating the facts).

According to the allegations of the complaint an attachment suit was brought before a justice of the peace against a non-resident defendant and a writ of garnishment was sued out against appellant. Appellant appeared in court and answered that it had a sum of money in its hands belonging to defendant amounting to $ 249.40. Appellee filed its interplea claiming the money. The justice of the peace dismissed the interplea because it did not comply with section 391 of Kirby's Digest. Appellee filed its affidavit and bond for appeal, and appellant became surety on its appeal bond. Appellee had a right to prosecute an appeal from the judgment of the justice of the peace dismissing his interplea. Bloom v. McGehee, 38 Ark. 329; Mitchell v. Woods, 11 Ark. 180; Hershy v. Clarksville Institute, 15 Ark. 128.

According to the allegations of the complaint appellant paid the money in its hands to the plaintiff in the attachment suit after the appeal was taken. It now contends that it had a right to do this because no appeal was taken in the attachment suit. This was not necessary to be done in order to preserve the rights of the interpleader. Appellee as interpleader, was not interested in the result of the attachment suit. It claimed the funds in the hands of the appellant as its own. The court had dismissed the interplea of the appellee and the appeal was necessary in order to preserve its rights. Appellant was in court and had notice that appellee had taken the appeal and appellant signed its appeal bond. It is true the appeal bond recited that the appeal was taken on the part of the interpleader only; but as we have already seen, appellee was not interested in the judgment on the attachment, and had a right to appeal from the order of the justice of the peace dismissing its interplea. If appellant had desired to be relieved of its liability in the case it should have paid the money into court before the appeal was taken. When the interplea was filed setting forth the claim of appellee to the funds an issue was formed thereon between him and the plaintiff and that issue was whether the money in the hands of the garnishee was the property of the claimant or the principal defendant. As above stated, if the garnishee desired to relieve itself of liability in the matter it should have paid the money into court to be delivered to whichever party the court should decide was entitled to it. Not having done so, it can not in this suit by alleging that it paid the money to the plaintiff in the attachment suit, after the appeal of the interpleader was taken, relieve itself of liability. In the judgment of the circuit court on appeal the court found from the evidence "that the money and draft garnisheed in the...