Citizens' Bank v. Commercial Nat. Bank

• Decision Date: 17 May 1915
• Docket Number: (No. 392.)
• Citation: 177 S.W. 21
• Parties: CITIZENS' BANK OF MAMMOTH SPRING et al. v. COMMERCIAL NAT. BANK OF CHICAGO, ILL.
• Court: Arkansas Supreme Court

177 S.W. 21

CITIZENS' BANK OF MAMMOTH SPRING et al. v. COMMERCIAL NAT. BANK OF CHICAGO, ILL.

(No. 392.)

Supreme Court of Arkansas.

May 17, 1915.

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

Action by the Citizens' Bank of Mammoth Spring and another against the Commercial National Bank of Chicago, Ill. From a judgment in favor of defendant, plaintiff and the Wood Grocery Company appeal. Affirmed.

This is the second appearance of this case here, a statement of which appears in the former opinion wherein the complaint was held sufficient. Citizens' Bank v. Commercial Natl. Bk., 107 Ark. 142, 155 S. W. 102. The Wood Grocery Company first brought suit in the justice court by attachment, to subject certain funds in the hands of the Citizens' Bank to the payment of its debt against L. Starks Company. The garnishee answered, admitting that it held the funds, which it offered to pay into court. The Commercial National Bank intervened, claiming to be the owner of the funds in the hands of the garnishee. Its intervention was denied by the justice, and it appealed to the circuit court, the Citizens' Bank becoming surety on its appeal bond. Upon the trial in the circuit court between the intervener and the Wood Grocery Company, the court rendered a judgment, from which the Wood Grocery Company prayed and was granted an appeal. The complaint herein alleges that the judgment was wrongfully and fraudulently entered against the Citizens' Bank, which had already paid the funds in its hands to the Wood Grocery Company after the judgment was rendered against the intervener in the justice's court, when in fact judgment was rendered by the circuit court against the Wood Grocery Company and not the Citizens' Bank. A demurrer was sustained to this complaint on the first trial in the circuit court, from which an appeal was taken, and this court held, as already said, the complaint sufficient, and reversed and remanded the case for further proceedings. The Citizens' Bank amended its complaint, and alleged that it had in fact paid the garnished fund over to the Wood Grocery Company, after the intervention of appellee herein was dismissed in the justice court, upon the order of the justice and before an appeal was taken from the order of dismissal, and also alleged more specifically the entry of judgment against it by misprision of the clerk, when no judgment had in fact been rendered by the circuit court against it, "that the court at that time rendered judgment against the Wood Grocery Company, a party to that action, and that by mistake or clerical misprision said judgment was unlawfully and wrongfully entered of record against this plaintiff."

The Commercial National Bank admitted that it had procured the judgment against the garnishee, and that same was entered upon the records of the circuit court, but denied that it was unauthorized or procured by fraud, clerical misprision or mistake, or entered without authority. It denied that the garnishee was without notice of the proceedings in the circuit court, and alleged that it appealed from the judgment dismissing its interplea in the justice's court in open court on the day of the trial, and that the garnishee bank became its surety on the appeal bond, and had full knowledge of the pendency of the proceedings in the circuit court; denied also that the garnishee paid over the funds in its hands before the appeal was taken from the justice court. Both the attorneys representing the Wood Grocery Company in the first trial in the circuit court testified, the deposition of Sam Davidson, who had since died, being read, and also A. P. Campbell, who was the manager of the Wood Grocery Company. The attorneys of appellee bank and the circuit judge also testified. It appears from the testimony that the circuit court rendered judgment against the Wood Grocery Company, both the attorneys, and the manager thereof stating positively that such was the fact, and the judge's minutes showing "judgment for amount against Wood Grocery Company." The testimony relating to the alleged payment of the money by the garnishee upon the order of the justice to the Wood Grocery Company after the dismissal of appellee's interplea shows that the appeal was prayed and granted on the day of the trial, in open court, and the affidavit and bond filed within an hour or two thereafter. The attorney for the Wood Grocery Company and the cashier of the garnishee bank testified that, immediately after the judgment of dismissal was rendered, the bank paid the garnished funds to the Wood Grocery Company upon the order of the justice, and took a receipt therefor, some little time before the affidavit and bond for appeal were filed. The testimony also shows that Campbell, the manager of the Wood Grocery Company agreed to repay the fund to the Citizens' Bank or hold it harmless if it should be compelled to pay the fund to the Commercial National Bank, upon the appeal to the circuit court. The entries in the justice's docket showed that the case was tried and the appeal granted on May 21st, and the receipt for the garnished fund shows it to have been paid on the 25th. The cashier of the garnishee bank and the manager, and also the attorney of the Grocery Company and the attorneys as well, testified that it was paid on the same day of the trial and immediately after the dismissal of the interplea, and the justice also saying that his docket entries were not always made up at the time of filing papers and the occurrence of the proceedings. The court set aside the judgment against the garnishee, the Citizens' Bank, and entered judgment nunc pro tunc against the Wood Grocery Company. It also found that, while the intervener was endeavoring to perfect its appeal from the judgment of the justice of the peace, the justice ordered the Citizens' Bank to pay the money garnished in its hands to the Wood Grocery Company, "with the understanding that in case of an appeal, and it was declared that the Wood Grocery Company was not entitled to it, and the Citizens' Bank was required to pay the money to the Commercial National Bank, that the Wood Grocery Company would reimburse it for the said amount, and therefore judgment should be rendered against it, the Citizens' Bank, also," and rendered judgment accordingly; and from this judgment this...