Ferguson v. Glidewell

• Decision Date: 15 January 1887
• Citation: 2 S.W. 711,48 Ark. 195
• Parties: FERGUSON v. GLIDEWELL
• Court: Arkansas Supreme Court

2 S.W. 711

48 Ark. 195

FERGUSON v. GLIDEWELL

Supreme Court of Arkansas

January 15, 1887

APPEAL from Pulaski Circuit Court, Hon. F. T. VAUGHAN, Judge.

Judgment reversed and cause remanded.

Blackwood & Williams, for appellant.

The court erred in declaring the law. Sec. 337, Mansf. Dig (which was sec. 416 of Gantt's), provides for a dissolving bond, which, when given, eliminates the attachment branch from the case and binds the surety on the dissolving bond to "perform the judgment of the court," whatever that may be. See Waples on Attachment and Garnishment, p. 397; 2 Metcalf (Ky.), 445 and 558; 4 Bush. (Ky.), 445; 18 Kansas, 236; 3 Mo. 409; 31 Tex. 207; 23 Kansas, 113; 7 Ill. 468; 40 Mich. 210; 70 Pa. 248; 82 N.Y 114; 24 Wis. 143; 29 Ohio St. 120; 21 Minn. 434.

The act of 1867, under which the case of Ward v. Carlton et al., 26 Ark. 64, was decided, is not the same as sec 337, Mansf. Dig., which is sec. 242 of the Civil Code.

"The Arkansas Justice," a very valuable treatise, written by the counsel for appellee in this case, says: This dissolving bond is sometimes mistaken for a forthcoming bond, "and gets the defendant into serious trouble. It is called a dissolving bond, and differs very materially from the forthcoming bond. The dissolving bond discharges, and stands in lieu of the attachment, and the action proceeds as though no attachment had ever issued. This bond is conditioned absolutely to perform the judgment of the court, whatever it may be, and admits the validity of the attachment. In an action on the bond the obligors can neither contest the grounds for obtaining the attachment, nor the liability of the property to be taken under it." Sec. 316, p. 178.

This book bears upon its preface page the endorsement of Hon. Henry C. Caldwell, Judge of the Federal Court, Hon. A. H. Garland, Judges Sam W. Williams, E. H. English and Geo. A. Gallagher. In case of Hill, as author, v. Hill, as lawyer, judgment should be for plaintiff.

We are aware that his Honor, Judge Caldwell, has decided this question adversely to us, but we are satisfied that he did not have the "Arkansas Justice" before him when he collated his authorities.

Unless courts are to legislate or interpret the English language contrary to Webster and Worcester, our view of this law must be taken and the circuit court reversed.

W. F. Hill, for appellee.

The opposing counsel take occasion to refer to the "Arkansas Justice" in support of their case. Although it may antagonize my present position, I will say that the law as laid down in that book was based on the rule that, when one state adopts the statutes of another, it also adopts the interpretation put upon those statutes by the courts of that state.

But Judge Caldwell did not think this consistent with our own law, and has decided otherwise in the case of Lehman v. Berdin, 5 Dil., 340, to which the court is referred as being conclusive of this case.

BATTLE, J. COCKRILL, C. J., dissenting.

OPINION

BATTLE, J.

Ferguson brought suit against W. F. Moore on an account, and sued out an attachment on the alleged ground that Moore was about to sell his property with the intent to defraud his creditors. The constable levied the order of attachment on certain property of Moore, who caused a bond to be executed to Ferguson by H. E. Glidewell, as surety, to the effect that Moore would perform the judgment of the court. The bond was approved and the property released. Moore filed an affidavit denying the statement of the affidavit of plaintiff upon which the attachment was issued. Judgment was rendered in favor of plaintiff against defendant on the account, and the attachment was ordered to be discharged. Ferguson then brought this action against Glidewell on the bond executed by him for the amount of the judgment recovered against Moore. Glidewell answered, setting up the order discharging the attachment as his defense. Judgement was rendered in favor of Glidewell, and Ferguson appealed.

The only question in the case is, did the order of the court discharging the attachment release Glidewell from the obligation of his bond.? This question has not been before this court since the adoption of the Code, but it is sometimes insisted that it did arise, under prior statutes of this state, which were the legal equivalent of the statute under which the bond sued on was executed, and that this court decided it in the affirmative in Delano v. Kennedy, 5 Ark. 455; Childress v. Fowler, 9 Ark. 159; and Wood v. Carlton, 26 Ark. 662.

The statutes of this state prior to the Code provided that suits at law by attachment might be commenced in any of the circuit courts of this state by filing in the office of the clerk of such court a declaration, petition, or statement in writing, setting forth the plaintiff's cause of action, an affidavit setting for grounds of attachment, and a bond to the defendant, with sufficient security, to the effect that plaintiff will prove his debt or demand on a trial at law, or that he will pay such damages as shall be adjudged against him, and by suing out a writ of attachment against the property of defendant; that the defendant, at the time of the service of the writ of attachment, or at any time before judgment shall be rendered against him, might file a bond, "conditioned that he will appear to and answer the plaintiff's demand at such time and place as by law he should, and that he will pay and abide the judgment of the court, or that his surety will do the same for him;" and that when the defendant should file such bond, as required by law, the attachment should be released and the suit proceed as other suits at law. This court held that the proceeding authorized by these statutes was, in its intention, a compound proceeding, combining a proceeding in rem with a proceeding in personam, each having a distinct identity, but liable to be transformed, at any time before final judgment, into a proceeding solely in personam, and, as a whole, was founded upon the declaration, bond, affidavit and writ in harmonious combination; and that should this foundation be defective, as it would be in case the affidavit, the bond, or the writ should not be in conformity with the statute, or either should vary, the one from the other, in so much as to disturb the harmony of the whole as one suit, the entire proceedings, if appropriately assailed, would necessarily fail. It is further held, that the object of these statutes was to obtain jurisdiction of the person of the defendant; that the bond which the defendant was authorized by these statutes to execute to secure the release of his property was essentially an instrument of bail, which accomplished substantially all the ends that were accomplished at common law by the taking of the bail bond below, together with the subsequent filing, entering and perfection of bail to the action above; that when a defendant in an action of attachment executed such a bond he did nothing more than a defendant did in England in an ordinary action, when he first executed a bail bond below to the sheriff and subsequently appeared, as he had covenanted to do, and entered into a recognizance of special bail to the action above, and perfected appearance there by the justification of his bail; that the bail bond below to the sheriff, and the recognizance of special bail to the action above, did not have the effect, at common law, of cutting off any of the defenses of the defendant; and that, therefore, the execution of the bond by the defendant for the purpose of discharging the attachment, under the statutes referred to, did not impair any of the defendant's rights of defense, and that after its execution, he might defend the action either by plea in abatement, interposed in apt time and in due form, or by plea in bar, in the same manner, in every respect, as if he had not executed the bond, and had suffered the property attached to remain in the hands of the sheriff. Childress v. Fowler, supra.

But the Code has made radical changes in the pleading and practice in the courts of this state. The bond and affidavit made by the plaintiff to secure an attachment and the writ of attachment, no longer form a part of the original proceedings by which an action at law may be commenced. Under the Code, attachment is a provisional remedy and merely ancillary to the action in which it is sued out. Its object, as expressly defined by the Code, is to secure the satisfaction of such judgment as may be recovered by the plaintiff. The bond the defendant is authorized to give to dissolve an attachment no longer fills the office of a bail bond at commomn law. It does not bind him to appear to and answer the plaintiff's demand at such time and place as by law he should, as it did under the former statute. The rules of construction heretofore followed by this court, in passing upon the effect of a bond of the defendant to dissolve an attachment upon his right to attack the attachment proceedings, are not, therefore, applicable to a dissolution bond executed under the Code, the reason having ceased to exist.

The bond sued on was executed under section 337, of Mansfield's Digest, which reads as follows:

"If the defendant, at any time before judgment, causes a bond to be executed to the plaintiff by one or more sufficient sureties, to be approved by the court, to the effect that defendant shall perform the judgment of the court, the attachment shall be discharged, and restitution made of any property taken under it, or the proceeds thereof."

In construing statutes like this the courts are not in accord. In Lehman v. Berdin, 5 Dillon 340, the United States circuit court for the eastern district of Arkansas, in construing the section under which the bond in question was...