Wilson v. Overturf

• Decision Date: 05 March 1923
• Docket Number: 204
• Citation: 248 S.W. 898,157 Ark. 385
• Parties: WILSON v. OVERTURF
• Court: Arkansas Supreme Court

248 S.W. 898

157 Ark. 385

WILSON v. OVERTURF

No. 204

Supreme Court of Arkansas

March 5, 1923

Appeal from Crittenden Chancery Court; Archer Wheatley, Chancellor reversed.

STATEMENT OF FACTS.

This is an appeal by a garnishee from a decree by default against him.H. C. Overturf, trustee, for the use and benefit of Aaron McMullin, brought suit in equity against Mrs. Charles Eddins Owen and Mrs. I. I. Biles to foreclose a deed of trust on certain lands in Crittenden County, Ark., given by Mrs. I I. Biles to secure an indebtedness of $ 7,000 owed by her to Aaron McMullin.The complaint alleges that Mrs. I. I. Biles sold the mortgaged land to Mrs. Charles Eddins Owen, and that the latter is now in possession of it; that she is allowing the land to grow up in noxious weeds and undergrowth, and that there has been a failure to pay the mortgage indebtedness or any part thereof.The complaint also contains allegations as follows:

"Plaintiffs are informed and believe that B. W. McCulloch is indebted to the defendantMrs. I. I. Biles and Mrs. Charles Eddins Owen in the sum of $ 11,775; that he has money, property, or effects belonging to the defendantMrs. I. I. Biles of the value of $ 11,775, and plaintiffs propound to the said B. W McCulloch the following interrogatories, to-wit:

"1st.Are you indebted to Mrs. I. I. Biles of Memphis, Tennessee and Mrs. Charles Eddins Owen, and, of so, state the amount of such indebtedness, the nature thereof, whether evidenced by a promissory note, and, if so, whether said notes are secured by mortgage or deeds of trust?State fully.

"2nd.Have you in your possession or under your control any moneys goods, chattels or effects of Mrs. I. I. Biles of Memphis, Tennessee, and Mrs. Charles Eddins Owen, and, if so, state the nature of the same and the value thereof."

The complaint prays for a foreclosure of the mortgage, and also for a writ of garnishment against B. W. McCulloch.A writ of garnishment was duly issued, and personal service was duly had upon B. W. McCulloch.On final hearing of the case, there was a decree of foreclosure in behalf of the plaintiff against Mrs. I. I. Biles and Mrs. Charles Eddins Owen, and a personal judgment was rendered against them for the amount of the mortgage indebtedness.

A decree by default against B. W. McCulloch as garnishee was also entered in the sum of $ 8,014.30, being the amount for which judgment was rendered against Mrs. I. I. Biles and Mrs. Charles Eddins Owen.

Subsequent to the rendition of the decree, B. W. McCulloch died intestate, and an appeal to this court has been duly prosecuted by the administrator of his estate.

Decree reversed, and cause remanded.

Berry & Wheeler, for appellant.

The allegations of the complaint are not sufficient to warrant or support a judgment against the garnishee.94 Ark. 572;41 Ark. 42;44 Ark. 56;58 Ark. 39;68 Ark. 263; 107 S.W. 179; 82 Ark. 455;Knapp v. Gray,153 Ark. 160.

J. F.Gautney, for appellee.

The service on the garnishee was by personal service of summons, and he failed to answer.Judgment by default was authorized under the garnishment act of 1889as amended, Acts of 1905. 70 Ark. 128;96 Ark. 1.Allegations and interrogatories are not necessary prerequisites to the validity of judgments against garnishees.133 Ark. 579, 582.

OPINION

HART, J., (after stating the facts).

Sec. 4916 of Crawford & Moses' Digest in effect provides that if any garnishee upon whom personal service has been had shall neglect or refuse to answer the interrogatories exhibited against him, the court before whom the matter is pending shall enter judgment against such garnishee for the full amount specified in the plaintiff's judgment against the original defendant, together with costs.Under this act final judgment may be rendered against a garnishee upon default made by him, or when, on trial, the court finds that he is indebted to the defendant in the original judgment.Norman v. Poole,70 Ark. 127, 66 S.W. 433;andTiger v. Rogers Cotton Cleaner & Gin Co.,96 Ark. 1, 130 S.W. 585.

In the instant case, judgment by default was rendered against the garnishee.The only question raised by the appeal is whether the allegations of the complaint are sufficient to support the decree entered upon the default of the garnishee.Koons v. Markle,94 Ark. 572, 127 S.W. 959,...