Tilmon v. Adkisson

• Decision Date: 01 June 1942
• Docket Number: No. 4-6775.,4-6775.
• Citation: 162 S.W.2d 903
• Parties: TILMON v. ADKISSON.
• Court: Arkansas Supreme Court

162 S.W.2d 903

TILMON v. ADKISSON.

No. 4-6775.

Supreme Court of Arkansas.

June 1, 1942.

Rehearing Denied June 29, 1942.

Appeal from Chancery Court, Faulkner County; J. B. Ward, Chancellor.

Suit by Mrs. G. W. Adkisson, agent, against Joe McCuin and Wayne Tilmon,

county administrative assistant, to restrain defendant Wayne Tilmon from delivering a certain rental check drawn by the United States government in favor of defendant Joe McCuin to the defendant Joe McCuin, and to require delivery of the check to the court for the plaintiff. From a decree in favor of plaintiff, the defendant Wayne Tilmon, county administrative assistant, alone appeals.

Affirmed.

Sam Rorex and J. E. Lightle, Jr., both of Little Rock, for appellant.

R. W. Robins, of Conway, for appellee.

MEHAFFY, Justice.

The appellee, Mrs. G. W. Adkisson, agent, brought suit in the chancery court of Faulkner county against Joe McCuin and Wayne Tilmon, county administrative assistant. She alleged that Joe McCuin was indebted to her and for a valuable consideration agreed to endorse and deliver to her a certain rental check drawn by the United States Government in favor of the defendant; that said rental check had been duly issued by the United States Government and was now in the hands of the defendant Wayne Tilmon, county administrative assistant, who is threatening to deliver said check to the defendant Joe McCuin; that McCuin was threatening to cash the same and not deliver same to plaintiff. She alleged that McCuin was indebted to her in the sum of $258.91 upon a certain promissory note. A copy of the note was attached and made part of the complaint; that McCuin is insolvent and has no property out of which she can collect said indebtedness and if the check is turned over to the defendant, he will cash same and fail and refuse to pay the plaintiff, and the plaintiff will thereby suffer irreparable injury and damage, and she has no adequate remedy at law. The amount of said check payable to McCuin is in the hands of Wayne Tilmon and is in the amount of $72.80.

A temporary restraining order was issued and served, and the appellee then filed an amendment to her complaint and alleged that the check was issued by the Secretary of Agriculture or some other agent of the Federal Government and is a negotiable bill drawn on the United States Treasury payable to the order of Joe McCuin and was in payment of the amount due to said defendant from the Federal Government in compliance with the conservation program of the Federal Government by said defendant while a tenant on plaintiff's farm in Faulkner county during 1940. All the work to be done by defendant McCuin for which said check represents payment has been performed in full and accepted by the government officials who have determined that said amount is due to Joe McCuin. The defendant Wayne Tilmon, as administrative agent, has no interest or control over the proceeds of said check and does not have any discretion or power with reference to said check or the proceeds thereof. Said check has been sent to the defendant Tilmon and is in his hands solely for the purpose of delivering same to Joe McCuin.

Joe McCuin did not appear or answer and there is no dispute about the indebtedness and no dispute about the fact that the work was done and accepted by the government, for which the check was issued.

Defendant Wayne Tilmon, county administrative agent, filed a motion to dismiss alleging first, that the Secretary of Agriculture of the United States is a necessary and indispensable party and has not been made a party thereto; second, that this action contravenes the statutes of the United States, to-wit: 16 U.S.C.A. § 590h; third, the complaint does not state facts sufficient to constitute a cause of action against this defendant; fourth, the court is without jurisdiction over the subject matter of this action; and fifth, that the court does not have jurisdiction over this defendant in his official capacity as county administrative assistant.

The court entered the following decree: "Now on this day comes the plaintiff, Mrs. G. W. Adkisson, agent, by her solicitor, R. W. Robins, and comes the defendant, Wayne Tilmon, county administrative assistant, by J. E. Lightle, Jr., assistant United States Attorney for the Eastern District of Arkansas, and the defendant, Joe McCuin, comes not, though duly served with process herein for the time and in the manner prescribed by law, and this cause coming on to be heard upon the motion to dismiss filed herein by the defendant, Wayne Tilmon, county administrative assistant, and being well and sufficiently advised it is by the court...