McGill v. Robbins

• Decision Date: 14 December 1959
• Docket Number: No. 5-1988,5-1988
• Citation: 231 Ark. 411,329 S.W.2d 540
• Parties: Gerald McGILL, Appellant, v. Robert Lee ROBBINS and B. A. Courson, Appellees.
• Court: Arkansas Supreme Court

Page 540

329 S.W.2d 540

231 Ark. 411

Gerald McGILL, Appellant, v. Robert Lee ROBBINS and B. A. Courson, Appellees.

No. 5-1988.

Supreme Court of Arkansas.

Dec. 14, 1959.

Y. W. Etheridge, Hamburg, Ruben K. King, Alexander City, Ala., for appellant.

Switzer & Switzer, Crossett, for appellees.

WARD, Justice.

We are concerned on this appeal with (a) a suit on a foreign judgment and (b) a garnishment of funds in the hands of a sheriff.

On August 16, 1958 appellant, McGill, obtained a judgment in the Circuit Court of Tallapoosa County, Alabama against appellee, Robert Lee Robbins, in the amount of $1,343.39 (less $125.00 later paid thereon). This judgment was obtained in a tort action involving an automobile collision. On or about February 2, 1959, appellant filed a verified complaint in the Circuit Court of Ashley County, Arkansas, against the said Robbins and B. A. Courson, the sheriff, in which the above facts were set forth and in which it was stated that B. A. Courson, the sheriff of Ashley County, Arkansas, has in his hands the sum of $1,500.00 belonging to Robbins. (It appears that said Robbins had deposited such sum of $1,500.00 with the sheriff in lieu of an appearance bond). The prayer in said complaint reads as follows: 'Wherefore, plaintiff prays judgment in the sum of $1,218.39 with interest from the date of the aforesaid judgment or August 16, 1958, the date of this judgment, with interest thereon until paid at 6% and costs of this action'. Attached to the complaint was a duly certified and verified copy of the Alabama judgment.

On March 16, 1959, the Clerk of the Ashley County Circuit Court issued a Writ of Garnishment Before Judgment commanding the sheriff, as garnishee, to appear in court and answer what goods, chattels, monies, credits and effect he may have in his hands or possession belonging to McGill. On the following day Robbins filed a motion to quash said Writ of Garnishment, setting forth several grounds therefor. The contentions with which we are here concerned are: (a) Garnishment cannot be issued before judgment except in actions in contract and this is a suit on a foreign tort judgment and not an action on a contract; and, (b) garnishment will not lie to seize money in custodia legis in the hands of the sheriff and cannot be had on any officer of a county or a state except after judgment.

On March 23, 1959 the trial court sustained Robbins' motion to quash and accordingly vacated and quashed the Writ of Garnishment. From this Order McGill has appealed.

(a) Appellees are correct in stating that garnishment cannot be issued before judgment in a tort action. See: Allen v. Stracener, 214 Ark. 688, 217 S.W.2d 620. We likewise agree with appellees that appellant did not comply with the Uniform Act on Foreign Judgments (Ark.Stats. Section 29-801 et seq.) whereby the Alabama judgment could be registered in this State. This matter is not decisive here so we refrain from discussing it more fully. Section 29-816 of the Uniform Act provides that: 'The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this Act remains unimpaired'. Since appellant brought this action under the old procedure to obtain a judgment in this State based on the Alabama judgment, it necessarily follows that the Writ of Garnishment in this instance was issued before judgment. However, we do not think this procedure was fatal to appellant, because we are of the opinion that this present action is not a tort action but merely an action on a debt. What appears to be the general and uniform rule in this connection is stated in 30A Am.Jur. Page 821, Section 929, where, among other things, it is stated: 'An action on a judgment is a suit of a civil nature. It is regarded as a new and independent action, and not for the same cause as the principal proceedings in which the judgment was obtained, even if its purpose is to revive the judgment. Technically a cause of action on a judgment is not the same as the original cause of action merged therein, thus, the cause of action on a judgment is different from that upon which the judgment was rendered'. We recognize the logic and soundness of that rule and therefore adopt it as our own. We must conclude, therefore, that appellant had a right to have the Writ of Garnishment issued upon the filing of his complaint and before a judgment thereon had been obtained.

(b) We now come to the consideration of a very interesting question--whether appellant could garnishee the sheriff who held $1,500.00 placed in his custody by appella...