Stout v. Brown

• Decision Date: 01 May 1897
• Parties: STOUT v. BROWN
• Court: Arkansas Supreme Court

40 S.W. 701

64 Ark. 96

STOUT v. BROWN

Supreme Court of Arkansas

May 1, 1897

Appeal from Benton Circuit Court, EDWARD S. McDANIEL, Judge.

Judgment affirmed.

E. P Watson, for appellant.

1. The lumber sued for herein was never attached, nor condemned to be sold.

2. Conceding that the sheriff attempted to seize it, he made a signal failure in the attempt. Sand. & H. Dig. § 336 subd. 2, 3. The return must show facts, not conclusions of law. Waples, Att. p. 262; 1 Am. & Eng. Enc. Law, p. 921; 3 B Mon. 579; 43 Miss. 225; 42 id. 515. The facts must be stated, and the presumption is the officer has stated all the facts attending the levy. Waples, Art. p. 263. The return could not be amended by parol testimony. Waples, Att. p. 264. The return fails to show that the lumber attached was the property of Stout. 1 Am. & Eng. Enc. Law, p. 922; Waples, Att. p. 251, 252; Drake, Att. (6 Ed.), § 207.

3. A court, having jurisdiction of the persons and subject-matter, does not therefore have jurisdiction in the ancillary proceeding attachment. The subject-matter of the former does not include the res of the latter. Waples, Art. p. 331; Drake, Art. (6 Ed.), sec. 85.

4. The sale was not according to law, and was never confirmed. Sand. & H. Dig. § 363, subd. 2; § 4684, ib.; 52 Ark. 446.

J. A. Rice, for appellee.

1. There is ample proof that the lumber was attached, and condemned, and sold.

2. The jurisdiction is proved and admitted. The court will presume the proceedings were regular, and that everything necessary to be done was done. Waples, Proc. in Rem. § 85; Waples, Art. p. 393; 27 U.S. Rep. (Lawyer's Ed.) p. 913; 9 id. 447. No error can be urged here that does not go to the full extent of extinguishing the jurisdiction of the court rendering the judgment, 20 U.S. (L. Ed.) p. 161; 7 id. p. 381. All that is required of the officer is to show in his return the property attached, the time it was attached, and the disposition made of it. Sand. & H. Dig. § 346; Waples, Att. pp. 252 and 254; 6 Ala. 831; 43 Miss. 583. It is only in proceeding in rem strictly that particularity of description of the res is important. Where there is an appearance of parties, and a personal judgment, the manner of the levy and the description of the property attached is of no importance. 5 Ark. 12-424; 34 id. 12-399; Waples, Proc. in Rem. 741, 534.

OPINION

BATTLE, J.

Prior to January, 1894, C. R. Stout was a manufacturer of oak lumber in Siloam Springs, in Benton county, in this state. On the 11th of the same month there were about 100,000 feet of this lumber on hand. At this time he was indebted to W. W. Brown in a large sum of money. To recover the amount due him, Brown brought an action against Stout in the Benton circuit court, and sued out an order of attachment. On the next day, the 12th of January, 1894, the sheriff, to whom the order of attachment was directed, levied upon and attached the lumber in Siloam Springs. At the March term of the Benton circuit court, in 1894, Stout appeared and answered, and J. C. McArthur filed a complaint in which he claimed to be the owner of 84,000 feet of the lumber attached. The issues joined in the main suit, and the claim of McArthur to the lumber, were submitted to the court sitting as a jury; and the court found in favor of McArthur as to the lumber claimed by him, and sustained the attachment as to the remainder of the lumber and other property levied upon, and rendered a personal judgment in favor of Brown against Stout for $ 1,401.71 and costs, and ordered the remainder of the lumber and other property, as to which the attachment was sustained, sold to satisfy the judgment, and for that purpose directed an execution to be issued. On the 21st of April, 1894, the clerk of the Benton circuit court issued a vend. ex. directed to the sheriff of Benton county, commanding him to sell the lumber and other property which the court ordered to be sold. The lumber was described in the order of sale and the vend. ex. as "15,000 feet of oak lumber in the city of Siloam on the lumber yard known as the 'Brown Yard.' " On the 4th of June, 1894, the sheriff sold the property, as he was commanded to do. A part of the property sold was a pile of lumber on lot 2 in block 6 in Siloam Springs, and in the alley adjoining, variously estimated as containing 8,000 and 13,000 feet of lumber, which was purchased by Brown, and hauled away by him in June or July of the same year. In December following Stout instituted a suit against Brown before a justice of the peace to recover the value of this lumber, where a trial was had, and Stout recovered a judgment, and Brown appealed to the Benton circuit court. In the circuit court the cause was submitted to and tried by the court sitting as a jury, and the trial resulted in favor of Brown, and Stout appealed.

Appellant insists that the finding and judgment of the circuit court in the action instituted by him against Brown should be set aside, and for cause of reversal says:

"1. That the officer who had the writ of attachment to execute in the case of W. W. Brown v. C. R Stout * * * did not levy the same upon the property now in controversy.

"2. The said officer did not take actual possession of the same, nor did he give the defendant, Stout, a copy of said order of attachment, with a notice specifying what property he had attached, to the person holding the same.

"3. That the officer having said...