Schiele v. Dillard

• Decision Date: 21 March 1910
• Parties: SCHIELE v. DILLARD
• Court: Arkansas Supreme Court

126 S.W. 835

94 Ark. 277

SCHIELE v. DILLARD

Supreme Court of Arkansas

March 21, 1910

Appeal from Garland Circuit Court; W. H. Evans, Judge; affirmed.

STATEMENT BY THE COURT.

This case comes to this court upon an appeal taken from a judgment of the Garland Circuit Court, overruling a motion filed by appellant asking the said court to modify an order and judgment which it had previously made distributing a fund which had been paid into the said court by the North State Fire Insurance Company, which had been garnished for money in its hands belonging to A. J. Dillard; said fund having been paid into the said court by order of the court in the case of Klein Bros. v. A. J. Dillard.

The facts heard upon the motion show that appellants on the 17th day of April, 1907, filed a suit in the circuit court of Garland County against Dillard & Kilgore Company, and on the same day sued out a writ of garnishment against the North State Fire Insurance Company, of Greensboro, N. C. Summons was issued, and on said 17th day of April, 1907, was served upon A. J. Kilgore, as president of Dillard & Kilgore Company, a corporation. On the same day the writ of garnishment was served on the said garnishee commanding it to appear and answer what goods, etc., it had belonging to the defendant, the Dillard & Kilgore Company. It was afterwards ascertained that the Dillard & Kilgore Company was in fact a partnership composed of A. J. Dillard and John Kilgore. On the 9th day of August, 1907, appellants sought to amend their complaint by making it run against A. J. Dillard and John Kilgore, as partners doing business under the firm name of Dillard & Kilgore Company. A summons was issued on this so-called amended complaint on the same day it was filed, and was served on the parties named therein, but no writ of garnishment was issued or service had on the North State Fire Insurance Company after the so-called amendment to the complaint was filed.

On the 4th day of September, 1907, garnishee filed its answer admitting an indebtedness of $ 1,750 to the defendant, A. J Dillard. In the meantime on the 20th day of April, 1907 Klein Brothers filed a suit in the Garland Circuit Court against A. J. Dillard, and Dillard & Kilgore Company, and sued out a writ of garnishment against the North State Fire Insurance Company, and O. H. Sumpter and R. L. Williams insurance agents, alleging that said garnishees were jointly indebted to the defendant, A. J. Dillard, in the sum of $ 2,500, and summons was issued upon said complaint upon the 20th day of April, 1907, and was served upon A. J. Dillard as president of said company.

On the 20th of June, 1907, Dillard filed his separate answer. This gave the court jurisdiction of Dillard. Also on the 24th day of May, 1907, the Standard Distilling Company filed its suit in the common pleas court of Garland County against the Dillard & Kilgore Company and A. J. Dillard, and at the same time sued out a writ of garnishment against the North State Fire Insurance Company, of Greensboro, N. C., summons on which complaint was served on A. J. Dillard as president of Dillard & Kilgore Company, on said date, and which writs of garnishment were served upon R. L. Williams and O. H. Sumpter on the 24th day of May, 1907.

The garnishee, North State Fire Insurance Company, filed its answer to the writ of garnishment of Klein Brothers and the Standard Distilling Company's writ of garnishment on the 4th day of September, 1907, admitting an indebtedness to A. J. Dillard of $ 1,750.

On the 13th day of February, 1908, Klein Brothers filed an amendment to their complaint, setting up that A. J. Dillard and John Kilgore were partners doing business under the firm name of Dillard & Kilgore Company, and praying for judgment as in their original complaint, and on said day sued out an alias writ of garnishment against R. L. Williams and J. H. Reece and North State Fire Insurance Company, jointly, which said writ was on the 13th day of February, 1908, served by delivering a true copy thereof to J. H. Reece, a member of the firm of Williams & Reece. No answer of either of garnishees was ever filed in response to this writ.

On July 24, 1909, the circuit court, on motion of the Standard Distilling Company and Klein Brothers, made an order, distributing funds in the hands of the clerk, as paid in to him by the North State Fire Insurance Company, under judgment against it in favor of A. J. Dillard and the garnishments in the several suits, directing the clerk, after paying the costs and attorney's fees, to pay the entire balance in his hands to Klein Brothers and the Standard Distilling Company.

On July 31, 1909, a judgment was rendered against the defendants in said suit of appellants against A. J. Dillard and John Kilgore, partners doing business as Dillard & Kilgore Company and the garnishee, North State Fire Insurance Company.

Subsequently Edwin Schiele & Company, appellants here, filed their motion in said court to consolidate the case of Klein Brothers, and the case of Dillard against the North State Fire Insurance Company, and to amend the order of court ordering the distribution of the funds.

On August 14, 1909, the court overruled said motion, to which ruling of the court appellant excepted, and prayed an appeal to the Supreme Court, which was granted.

Judgment affirmed.

C. Floyd Huff, for appellant.

The lien of a garnishment dates from the time the garnishment writ is served upon the garnishee. 39 Ark. 97; 40 Ark. 531; 3 Ark. 509; 6 Ark. 391; 18...