State, Use Glover v. McIlroy

Decision Date25 April 1938
Docket Number4-5023
Citation116 S.W.2d 601,196 Ark. 63
PartiesSTATE, USE GLOVER v. MCILROY
CourtArkansas Supreme Court

Appeal from Washington Circuit Court; John S. Combs, Judge affirmed.

Judgment affirmed.

Mayes & Mayes, O. E. & Earl N. Williams, for appellant.

Clifton Wade and G. T. Sullins, for appellees.

OPINION

BAKER, J.

The complaint in this case, filed by C. A. Glover, alleges the election in 1928 of Henry B. Walker, as sheriff of Washington county; that on January 1, 1929, he executed a sheriff's bond, in the sum of $ 35,000, signed by J. H. McIlroy, F. P Hall and Marion Wasson. The conditions of the bond are fully set forth in the complaint. It was further pleaded that Walker was re-elected sheriff in November, 1930, and that oil January 1, 1931, he executed a second bond for $ 35,000 signed by J. H. McIlroy as surety. Glover alleged that in February, 1929, he instituted an action in replevin in the Washington circuit court against Walker, as sheriff, to recover possession of certain mules, harness and equipment. This property had been attached and was held by the sheriff as the attaching officer, under process issued by a justice of peace court. This property was attached as belonging to R. L. Adams.

It is further alleged that this suit by replevin, was disposed of on April 30, 1937, when a judgment by consent was rendered against Henry B. Walker, the former sheriff, for $ 923 and costs. It was pleaded further that said Walker, acting in his official capacity, had sold the property sought to be replevied, and plaintiff was, therefore, unable to secure judgment for the possession thereof, but was given the judgment aforesaid in the alternative. After execution had been issued upon this judgment, plaintiff found that he was unable to collect, as execution was returned unsatisfied. This suit, the basis of the appeal, was then filed in the circuit court against J. H. McIlroy and Marion Wasson, jointly and severally, to recover from them the $ 923 and interest and costs, which Glover had been unable to collect from Henry B. Walker, in satisfaction of the judgment rendered on April 30, 1937. The first bond expired, of course, with the first term of office held by Henry B. Walker. That is to say, the bond was executed on the 1st day of January, 1929, and expired on the last day of December, 1930. The second bond was made on the 1st day of January, 1931, and expired on the last day of December, 1932. Bond was conditioned according to the statute, that is, that "if the said Henry B. Walker shall well and truly and faithfully discharge and perform the duties of this office and at the expiration of his term of office shall render unto his successor in office a correct account of all sums of money, books, goods, valuables and other property as it comes into his custody as such sheriff of said county; and shall pay and deliver to his successor in office, or any other person authorized to receive the same, all balances, sums of money, books, goods, valuables and other property which shall be in his hands and due by him, then the above obligation shall be null and void, else the same shall remain in full force and virtue."

The defendants, McIlroy and Wasson, filed demurrer to the complaint. The demurrer was sustained and Glover refused to plead further and judgment dismissing the complaint was entered, and it is from that judgment that this appeal has been taken.

From the foregoing it appears that this suit in replevin, brought by Glover, was filed during the first term of Glover's tenure of office as sheriff. His first term of office expired December 31, 1930. His second, or last term expired on December 31, 1932. For some reason not set forth in the pleadings and unnecessary to be considered here, the case was continued, or at least not tried until April 30, 1937. The judgment which was entered in favor of Glover against the sheriff shows that the property sought to be recovered in the replevin suit was sold on March 12, 1929; that the net proceeds of the sale amounted to $ 923, the amount for which judgment was rendered.

There is no allegation in the complaint that Henry B. Walker, as sheriff, had any authority to sell the property, nor is there any allegation as to what became of the suit in the justice of peace court, as to whether the attachment was sustained under which the property had been seized, or if it had been discharged. According to the allegations of the complaint, the suit, filed to recover this property, was filed in February, before this property was sold on March 12. There is no allegation why the property was not turned over to the appellant at the time the suit was filed, or that he did or did not make bond for the property.

The allegations upon which the appellant relies are to the effect that Walker was acting in his official capacity as sheriff in taking charge of, handling and disposing of the property. Of course, if he were acting otherwise or as an individual, as distinguished from his conduct as sheriff, the sureties upon his bond would in no respect have been liable. There is no statement in these pleadings, nor is there any information otherwise, because this case was settled on demurrer, why Glover did not intervene in the suit against Adams, make claim to his property and have his rights there adjudicated and it is likewise impossible to determine, as above suggested, why he did not have delivered to him, upon the institution of his...

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4 cases
  • Williams v. Purdy
    • United States
    • Arkansas Supreme Court
    • March 8, 1954
    ...by demurrer. Herpin v. Webb, Ark., 256 S.W.2d 44. However, this rule has certain qualifications, for in State, to Use of Glover v. McIlroy, 196 Ark. 63, 116 S.W.2d 601, 603, it is said: 'It is urged, and we think correctly so, that the plea of the statute of limitations cannot be raised by ......
  • Gibson v. Gibson, 5--4471
    • United States
    • Arkansas Supreme Court
    • March 11, 1968
    ...time has elapsed to bar the action, but that there are no facts or grounds for avoidance of the statute. State, to Use of Glover v. McIlroy, 196 Ark. 63, 116 S.W.2d 601; Rogers v. Ogburn, 116 Ark. 233, 172 S.W. 867. For example, it was held that a complaint to cancel a contract for fraud, w......
  • Davis v. Davis
    • United States
    • Arkansas Supreme Court
    • April 25, 1938
  • State v. McIlroy
    • United States
    • Arkansas Supreme Court
    • April 25, 1938
    ...116 S.W.2d 601 ... STATE, for Use of GLOVER, ... McILROY et al ... No. 4-5023 ... Supreme Court of Arkansas ... April 25, 1938 ... Rehearing Denied May 30, 1938 ...         Appeal from Circuit Court, Washington County; John S. Combs, Judge ...         Action by the State of Arkansas for the Use of C. A. Glover, against ... ...

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