De Loach Mill Manufacturing Company v. Little Rock Mill & Elevator Company

• Decision Date: 09 July 1898
• Citation: 47 S.W. 118,65 Ark. 467
• Parties: DE LOACH MILL MANUFACTURING COMPANY v. LITTLE ROCK MILL & ELEVATOR COMPANY
• Court: Arkansas Supreme Court

47 S.W. 118

65 Ark. 467

DE LOACH MILL MANUFACTURING COMPANY v. LITTLE ROCK MILL & ELEVATOR COMPANY

Supreme Court of Arkansas

July 9, 1898

Appeal from Miller Circuit Court, RUFUS D. HEARN, Judge.

STATEMENT BY THE COURT.

The Little Rock Mill & Elevator Company brought an action upon an account for $ 1,540.60 against the Texarkana Grain, Lumber & Machinery Company, on April 29, 1893, and sued out a writ of attachment, which was levied upon the saw mill and one corn mill belonging to the appellants, and upon other property of the defendants in the attachment. All the property was sold by the sheriff under an order of sale made by the judge in vacation of court, and at said sale the said mills were purchased by the plaintiff below (who is the appellee) at $ 475, but were not paid for.

Before other steps were taken in the case, the Deloach Mill & Manufacturing Company, the appellant here, filed an interplea, claiming title to the property, at the June term of court following which was sworn to, and prayed for the proceeds of said sale of said mills. The interplea was not answered then.

The defendant in the original suit, the Texarkana Grain, Lumber & Machinery Company, answered the complaint in the original suit, admitted the debt, but denied the grounds for the attachment, and claimed damages for the wrongful attachment. The court gave judgment for the debt, but discharged the attachment, and gave the defendant to the original suit damages for $ 200 difference between the value of property attached and what it sold for, and ordered that the damages be credited on the judgment, and directed the sheriff to pay the proceeds of the sale of the attached property to the defendant, or its attorney. The attorney who represented the defendant also represented the interpleader.

The plaintiff gave bond, and appealed to the supreme court, and matters stood in statu quo, with reference to proceeds of sale, until after the judgment of the circuit court was affirmed in April, 1895. No answer had been filed to the interplea, which, at the November term, 1895, by consent of parties, was continued until the January term, 1896. At the June term, 1896, the plaintiff filed an answer to the interplea, not denying the ownership of the interpleader, but setting up as a defense only the facts that there had been a trial between the plaintiff and defendant in the original suit, and judgment for the plaintiff and that the interpleader was estopped to claim the proceeds of the sale of the mills, because judgment had been rendered for the value of the property interpleaded for and damages for the detention thereof against the plaintiff in the attachment suit, and said judgment had been satisfied by said plaintiff. They said that said interpleaders were, during all the stages of the proceedings prior to and under said judgment, parties to said suit, and made no objection to the judgment and orders of the court therein, although they were cognizant of such proceedings. They submit to the answer that the interpleaders are estopped, and that the matters and issues are res judicatae.

Judgment reversed and cause remanded.

Williams & Arnold, for appellant.

An interplea must be answered, or its allegations are admitted. 48 Ark. 446; 33 Ark. 611; 47 Ark. 31; 57 Ark. 545; Boone Code Pl. § 159; 50 Barb. 397. Appellant is not estopped by the judgment against the original defendant. Wells, Res Adj. and Stare Decisis, 175; Freeman, Judg. 256; Beach, Judg §§ 624, 629; 4 Wall, 236; 94 U.S. 606; 26 Am. Rep. 288-390; 38 Ark. 329; 15 Ark. 128; 11 Ark. 180; 60 Ark. 444. All the interpleader can recover in this suit is the proceeds of the sale. 53 Ark. 134. It was error to credit the amount of the judgment on the price bid at the sale by plaintiff. This satisfaction of the judgment is void, and should be set aside. 38 Ark. 28; Freeman, Executions, §§ 54, 352; Freeman, Judg. § 478.

L. A. Byrne, for appellee.

Appellant, having failed to insist on its right before sale of the attached property and payment to the plaintiff, cannot now do so. Sand. & H. Dig., § 372. Appellant is also estopped by acquiescence. 52 Ark. 468; 57 Ark. 638; Bigelow, Estop. 118, 121; Herman, Estop. §§ 125, 242, 288, 1063.

OPINION

HUGHES, J., (after stating the facts.)

The question of estoppel was the only question considered and decided by the circuit court between the interpleader and the original plaintiff. The interpleader's title seems to have been admitted. It was not disputed. There was no answer denying it. Was the interpleader estopped? The interpleader was not a party to the original suit.

Speaking of an interplea, in Berlin v. Cantrell, 33 Ark. 611, Chief Justice English, said in substance, that it was in the nature of a cross action for the property claimed and was the interpleader's suit, in which, in legal effect, the interpleader was the plaintiff. Chief Justice Cockrill said, in Sannoner v. Jacobson, 47 Ark. 31, 14 S.W. 458, that the intervening suit is a separate one. "As such is its nature, we think the pleadings in it must be governed by rules applicable to similar pleadings in other actions. Boone, Code Pleadings, § 159. Our conclusion, therefore, on this point is that the court erred in refusing to require a written answer to the interplea...