Missouri Pac. R. Co. v. McLendon

• Decision Date: 22 February 1932
• Docket Number: No. 157.,157.
• Parties: MISSOURI PAC. R. CO. v. McLENDON.
• Court: Arkansas Supreme Court

Page 626

46 S.W.2d 626

MISSOURI PAC. R. CO. v. McLENDON.

No. 157.

Supreme Court of Arkansas.

February 22, 1932.

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Action by Harvey McLendon against the Sullivan-Long & Haggerty Company, wherein the Missouri Pacific Railroad Company was garnisheed. From a judgment for plaintiff against garnishee, the garnishee appeals.

Reversed, and cause of action against garnishee dismissed.

Thos. B. Pryor and W. L. Curtis, both of Ft. Smith, for appellant.

J. B. Perrymore, of Ozark, and Starbird & Starbird, of Alma, for appellee.

MEHAFFY, J.

The appellee, Harvey McLendon, filed a complaint in the Crawford circuit court on January 3, 1931, against Sullivan-Long & Haggerty Company. He alleged that the defendants were a construction company operating under the firm name and style of Sullivan-Long & Haggerty Company; that they were nonresidents of the state of Arkansas, and had property in the possession of the Missouri Pacific Railway Company about to be shipped out of the state.

Allegations and interrogatories were filed, and a writ of garnishment was issued and served on the defendant the same day.

Plaintiff alleged that the defendants were indebted to him in the sum of $1,500. The pleadings were not verified, and no affidavit was filed.

The defendant, at the same time, filed a bond in the sum of $3,000; the defendant's name being signed to said bond by one of his attorneys, and the attorney signed it as surety.

The Missouri Pacific Railroad Company, on January 22, filed its answer denying that it had any goods, wares, chattels, moneys, credits, or effects in its hands at the time of the service or at any time thereafter.

On February 3, McLendon filed an affidavit for a warning order, and on February 5 the warning order was issued and was published; the first insertion being the 6th day of February.

On March 5 the appellee filed a response to the answer of the garnishee denying the allegations in said answer. On March 9 the garnishee filed an amended answer.

Report of attorney ad litem was filed on March 10, and also a motion to strike the answer of the garnishee from the files. The report of the attorney ad litem was to the effect that on February 18 he addressed a stamped envelope with his return address printed thereon to the defendants at Birmingham, Ala., inclosing defendants a copy of the complaint, but that he had received no reply.

On the same day appellee filed a motion to strike appellant's amended answer from the files, and on the same day, February 18, the garnishee made an oral motion for an order discharging the garnishee, and this motion was overruled by the court.

The garnishee then filed an application to be permitted to defend in the case. In this motion, as well as in its answer, it was stated that on January 5 the defendant tendered shipment of eight cars of secondhand road and paving equipment to the garnishee at Mulberry, Ark.; that said garnishee issued a bill of lading for the property, which was to be shipped to Lake Providence, La.

On March 19 the garnishee filed a demurrer to the jurisdiction of the court, alleging that, at the time of the issuance and service of the writ of garnishment, no suit had been commenced, and also that the bond filed by appellee was signed by one of the attorneys of appellee without getting the permission of the court to become surety.

The jury returned a verdict for the sum of $750, for which sum judgment was entered against the garnishee. Motion for new trial was filed within the time allowed by the court, which was by the court overruled, exceptions saved, and an appeal prosecuted to this court.

Evidence was taken tending to show the indebtedness of defendants to appellee, and it was agreed by counsel for the parties that there was no original process for the purpose of securing service on the defendant, and it was also agreed that the property shown in the bill of lading exceeded the amount sued for, including costs.

Appellant discusses several questions, but we find it necessary to decide but one question, and that is, whether the writ of garnishment was void because at the time it was issued no action had been commenced against the original defendant.

The statute authorizing writs of garnishment reads as follows: "In all cases where any plaintiff may begin an action in any court of record, or before any justice of the peace, or may have obtained a judgment before any of such courts, and such plaintiff shall have reason to believe that any other person is indebted to the defendant, or has in his hands or possession goods and chattels, moneys, credits and effects belonging to such defendant, such plaintiff may sue out a writ of garnishment, setting forth such claim, demand or judgment, and commanding the officer charged with the execution thereof to summon the person therein named, as garnishee, to appear at the return day of such writ, and answer what goods, chattels, moneys, credits and effects he may have in his hands or possession belonging to such defendant to satisfy said judgment, and answer such further interrogatories as may be exhibited against him; provided, if the garnishment be issued before the judgment, the plaintiff shall give bond in double the amount for which the garnishment is issued, that he will pay the defendant all damages that he may sustain by the wrongful bringing of his suit or the issuing of the garnishment."

It will be observed that this statute says that, when the plaintiff may begin an action, a writ of garnishment may be issued.

Was any action begun against the defendants in this case before the writ of garnishment was issued?

Section 1049, Crawford & Moses' Dig., is as follows: "A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon."

No summons was ever issued against the defendant in this case; the defendants being nonresidents. No affidavit for a warning order was filed until February 3, a month after the writ of garnishment had been issued.

This court has said: "There is no statutory provision defining the commencement of a suit where service is constructive and made pursuant to sections 6055-6056 of Kirby's Digest. But, by analogy, it seems clear that a suit commenced by constructive service, as authorized by sections 6055-6056, is commenced when the proceedings therein provided for are complied with. In fact, this is a method of summons fitted to a case where the defendant is a nonresident." Boynton v. Chicago Mill & Lumber Co., 84 Ark. 203, 105 S. W. 77, 80.

Sections 6055, 6056, Kirby's Digest, which were construed by the court, are sections 1159, 1160, of Crawford & Moses' Digest.

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