Downs v. Dennis

• Decision Date: 20 May 1907
• Parties: DOWNS v. DENNIS.
• Court: Arkansas Supreme Court

102 S.W. 699

DOWNS v. DENNIS.

Supreme Court of Arkansas.

May 20, 1907.

Appeal from Polk County Court; Jas. D. Shaver, Chancellor.

Action between S. A. Downs and G. B. Dennis. From a judgment for the latter, the former appeals. Affirmed.

Downs & Whitley, for appellant. Wright & Prickett, for appellee.

HILL, C. J.

The facts as found by the chancellor (and his finding is sustained by the evidence), so far as necessary to determine this appeal, may be stated as follows: Pumphrey obtained a judgment in justice court in October, 1900, against Galentine for $27.80 and costs. Galentine filed a stay bond, with S. A. Downs, the appellant, and J. K. Loyd, as sureties. In May, 1901, Galentine paid into court on said judgment $25. leaving a balance due of $2.80 and costs. In November, 1901, the judgment was assigned to Downs. The judgment at the time of the assignment was $6.90, including costs of $4.10. On the 24th of February, 1903, after a nulla bona return, transcript was filed in the office of the circuit clerk under section 4631 of Kirby's Digest. Execution issued upon this judgment on the 9th of March, 1903, for $27.80 and $7.10 costs. A lot in Mena was levied upon and sold under said execution and was bought by the said Downs for $45, the execution at that time showing judgment and costs amounting to $42.40. A certificate of purchase was issued to Downs, and subsequently a sheriff's deed was made to him.

The question to be determined on this appeal is whether the title acquired by Downs through said execution sale is good. An interesting question has been discussed as to whether a judgment rendered for more than $10, but which has been reduced to less than $10 by payments, can be filed as a circuit court judgment under section 4631 of Kirby's Digest; but before that question is reached there is another which is decisive of the case.

There was a credit of $25 upon the judgment, which reduced the face of it to $2.80. This payment was made before the judgment was filed with the circuit clerk, and no credit was shown in the transcript filed in the office of the circuit clerk, and no credit appeared upon the execution issued thereupon. At the time of the sale the amount of the judgment and costs purported to be $42.40, and that was the sum for which the property was sold, when, as a matter of fact the principal of the judgment was only $2.80, instead of $27.80. This principle laid down by Chief Justice Lewis in the case of Hastings v. Johnson, 1 Nev....