Foster v. Pollack Co.

• Citation: 291 S.W. 989,173 Ark. 48
• Decision Date: 14 March 1927
• Docket Number: 258
• Parties: FOSTER v. POLLACK COMPANY
• Court: Arkansas Supreme Court

291 S.W. 989

173 Ark. 48

FOSTER v. POLLACK COMPANY

No. 258

Supreme Court of Arkansas

March 14, 1927

Appeal from Pulaski Circuit Court, Third Division; Marvin Harris Judge; reversed.

STATEMENT OF FACTS.

This appeal involves the question of whether or not a justice of the peace has jurisdiction coextensive with the county in garnishment proceedings. Pollack Company sued Prince Thomas in the municipal court of the city of North Little Rock and obtained judgment against him and the Buckeye Cotton Oil Company as garnishee. J. B. Foster sued Prince Thomas, and at the same time caused a writ of garnishment to be issued against the Buckeye Cotton Oil Company in a justice court of Eastman Township. The garnishment in the Foster case was issued and served before the garnishment in the Pollack Company case. Judgment was rendered in each case against the garnishee, Buckeye Cotton Oil Company, and it appealed each case to the circuit court.

In the circuit court both cases were consolidated and tried together. The facts as stated above were agreed to between the parties in the trial in the circuit court. It was further agreed that neither the defendant, Prince Thomas, nor the garnishee, Buckeye Cotton Oil Company, were served with summons in Eastman Township. They were residents of another township in Pulaski County, and never entered their appearance to the action. Judgment was rendered against the defendant by default by the justice of the peace in Eastman Township. The circuit court rendered a judgment in favor of Pollack Company and against the Buckeye Cotton Oil Company as garnishee in that case. It also rendered judgment against J B. Foster and in favor of the Buckeye Cotton Oil Company as garnishee in that case.

The consolidated case is here on appeal.

Judgment reversed and cause remanded.

Joe H. Thompson, for appellant.

Mitchell Cockrill, E. R. Parham and Owens & Ehrman, for appellee.

OPINION

HART, C. J., (after stating the facts).

The issues raised by the appeal depend upon the construction to be given to § 6401 and § 4906 of Crawford & Moses' Digest. Section 6401 reads as follows: "Actions cognizable before a justice of the peace, instituted by summons or warrant, shall be brought before some justice of the peace of the township wherein the defendant resides, or is found, or, if there be one or more defendants in different townships, then in the township where one of them resides or is found. Provided, action by attachment, actions for the recovery of personal property, actions for provisional remedies, and all criminal actions and proceedings, may be brought before any justice of the peace in the county."

Subsequently the Legislature of 1895 amended our garnishment statute so as to provide that an action may be commenced by garnishment process by giving the bond and otherwise complying with provisions of the statute. Crawford & Moses' Digest, § 4906.

It is sought to uphold the judgment of the circuit court on the ground that a garnishment such as was resorted to in this case is not a provisional remedy within the meaning of § 6401 referred to. In Ferguson v. Glidewell, 48 Ark. 195, 2 S.W. 711, it was expressly held that, under the Code, attachment is a provisional remedy and merely ancillary to the action in which it is sued out. In addition, the court said that its object, as expressly defined by the Code, is to secure the satisfaction of such judgment as may be recovered by the plaintiff. Again, in Ribelin v. Wilks, 135 Ark. 599, 205 S.W. 977, the court recognized that an attachment was a provisional remedy and that the jurisdiction of a justice of the peace in such cases is coextensive with the county and not limited to the township in which the defendant resides or is found. Thus we have an express holding of this court that an attachment is a provisional remedy under this section of the statute and that the jurisdiction of the justice of the peace is coextensive with the county in attachment cases.

In Rood on Garnishment, § 1, it is said that garnishment is a mode of attachment...