Merriman v. Sarlo

• Decision Date: 07 November 1896
• Citation: 37 S.W. 879
• Parties: MERRIMAN et al. v. SARLO.
• Court: Arkansas Supreme Court

37 S.W. 879

MERRIMAN et al. v. SARLO.

Supreme Court of Arkansas.

November 7, 1896.

Appeal from chancery court, Pulaski county; David W. Carroll, Judge.

Action by Joseph Sarlo against Merriman & Menkus for injunction. Judgment for plaintiff. Defendants appeal. Reversed.

On the 17th day of July, 1894, the appellee filed his complaint in the Pulaski chancery court, and alleged, in substance, that Merriman & Menkus had, on the 18th day of April, 1894, brought suit before Hiram Robbins, a justice of the peace of Big Rock township, Pulaski county, Ark., against one Fred Blittersdorf, for the sum of $75, and at the same time procured an attachment from said justice, which was levied on the east 70 feet of lots 11 and 12, and all of lot 9, in block 199, in the city of Little Rock, by the constable; that Blittersdorf was under 21 years, and the grounds of the attachment were that he was about to sell, convey, or otherwise dispose of his property with a fraudulent intent to cheat, hinder and delay his creditors, etc.; that on April 28, 1894, judgment by default went against Blittersdorf for $75, and the attachment was sustained; that on June 2, 1894, said Merriman & Menkus filed with the circuit clerk a transcript of the proceedings before Robbins, and on the same day got from the clerk an execution or order of sale of said lands, and placed it for enforcement in the hands of Anderson Mills, the sheriff of said county, who proceeded to advertise said lands for sale on the 28th day of July, 1894; that said judgment was rendered against Blittersdorf without a guardian ad litem, or any defense being made for him. Appellee further alleges that he purchased said lands from Blittersdorf on the 20th day of April, 1894, and without knowledge of the attachment, and after the removal of the disabilities of Blittersdorf by order of the Pulaski circuit court; that the transcript of the justice was not noted by the clerk on the docket, as the law directs, until July 11, 1894. On August 17, 1894, appellants filed their answer, in which they admit the beginning and disposition of the suit before the magistrate, substantially as alleged, and set up that Blittersdorf had his disabilities as a minor removed by order of the circuit court before he entered into the contract with appellants, and before the institution of the suit before Robbins. They therefore submitted that a guardian ad litem was unnecessary, and that notice to appellee of the attachment cut no figure because the lien had attached before he bought.

The agreed statement of facts is as follows: "(2) That the plaintiff, at the time he purchased the property from Fred Blittersdorf, had no actual notice that Merriman & Menkus had or claimed any lien upon or any rights in said land described in the complaint. (3) That Fred Blittersdorf, mentioned in the complaint, was, when the writ of attachment was sued out before Robbins, justice of the peace, and when judgment was rendered by said justice, a citizen and resident of Arkansas, and of Pulaski county, and was not twenty-one years of age, and was a male person." "(5) That the transcript filed with the complaint as Exhibit C was not entered in the docket of the circuit court for common-law judgments of Pulaski county, Arkansas, until the 11th day of July, 1894, but was filed with the clerk on June 2, 1894. (6) That the defendant sheriff was proceeding to sell said lands as...