Woods v. Quarles
| Decision Date | 11 February 1929 |
| Docket Number | (No. 164.) |
| Citation | 13 S.W.2d 617 |
| Parties | WOODS et al. v. QUARLES. |
| Court | Arkansas Supreme Court |
Appeal from Drew Chancery Court; E. G. Hammock, Chancellor.
Suit by John M. Quarles against G. A. Woods and another. Decree for plaintiff, and defendants appeal. Affirmed.
Brewer & Cracraft, of Helena, and Williamson & Williamson, of Monticello, for appellants.
Wilson & Norrell, of Monticello, and W. G. Dinning, of Helena, for appellee.
Appellee brought suit in the Drew chancery court against G. A. Woods and A. S. Woods, alleging: That he (Quarles) was a resident of Phillips county, Arkansas. That on the 4th day of April, 1925, in a cause pending in the Drew chancery court, wherein G. A. Woods and others were plaintiffs and T. D. Hunt and others were defendants, a writ of garnishment was issued out of Drew chancery court, directed to the sheriff of Phillips county, Arkansas, wherein John M. Quarles was named as garnishee. That pursuant to said writ of garnishment, on June 10, 1925, judgment for $8,750.35 was rendered against him by reason of his failure to answer in response to said writ of garnishment. A certified copy of the judgment was attached to plaintiff's complaint as a part of same.
Quarles further alleged that the decree was void because the Drew chancery court had no right or authority to issue a writ of garnishment, directed to the sheriff of Phillips county, directing him to serve the same upon Quarles, a resident of Phillips county, Arkansas, and that the issuance and delivery of such writ was wholly void, and the judgment of the Drew chancery court based thereon exceeded its jurisdiction. He also alleged that said writ of garnishment was not served upon him in any manner, although the same has a return indorsed thereon, showing that the same was served by E. Toney, deputy sheriff. He stated that the return was false and fraudulent, and that no service was had upon him, and that he had no knowledge, either actual or constructive, of the garnishment proceeding against him until March, 1927.
On the 23d of March, 1927, the appellants filed suit in the Phillips chancery court, alleging that they had recovered a judgment against Quarles by reason of the garnishment proceeding, and sought to subject certain funds recovered by Quarles from the Ætna Casualty Company to the payment of said judgment; that service of summons in the suit in the Phillips chancery court was served shortly after March 25, 1927, and that this was the first information, either actual or constructive, which Quarles had of the pendency of any garnishment proceeding in the Drew chancery court; that, if the writ of garnishment had been served on him, he could and would have filed an answer to the same, denying that he was indebted to Hunt in any sum whatever. He alleged that Hunt is insolvent, and is, in fact, indebted to the plaintiff. Plaintiff prayed that the decree of the Drew chancery court be canceled and set aside, and for all proper relief.
It was shown that G. A. Woods and A. S. Woods were nonresidents of the state of Arkansas and a warning order was published. The burden was, of course, on appellee to show not only that the return of the officer was false; that no service was ever had on him, but also to show that he had a meritorious defense. He alleged that he was not indebted to Hunt in any way, but that Hunt was indebted to him, and, if that were true, it would have been a meritorious defense. Appellants, however, state in the beginning of the argument that the only issue of fact presented by the appeal is the allegation of appellee in his complaint, which was sustained by the lower court, that he (Quarles) was not served with the writ of garnishment involved —that the sheriff's return is false.
All of the material allegations in the complaint were denied by appellants, and they also denied the jurisdiction of the court, and alleged that his action was stale; that he was guilty of laches, and also pleaded estoppel. The chancery court held that the writ of garnishment, issued on the 4th day of April, 1925, was never served in any manner whatever upon John M. Quarles, and set aside the default judgment rendered on June 10, 1925, in the sum of $8,750.35, together with interest, canceling, vacating, setting aside, and holding for naught said judgment.
Quarles himself testified that he lived in Helena, Ark., and filed as an exhibit to his deposition the certified copy of the judgment or decree rendered by the Drew chancery court on the 10th day of June, 1925; that the writ of garnishment issued by the Drew chancery court April 4, 1925, was never served on him by Edgar Toney or any one else, and that he never learned anything about the judgment by default until summons was served on him in the Phillips chancery court March 26, 1927; that he had neither actual nor constructive notice; that, if said garnishment had been served, he would have taken steps to prevent any judgment; that he did not owe Hunt anything and that Hunt was still indebted to him.
He further testified that at the time the deputy sheriff claimed to have served the garnishment he was living in Little Rock with his family; that his wife's health was not good, and that he did not go back to Phillips county until the 28th day of May, 1925, about 18 days after the date on which the deputy sheriff claimed to have served him in Helena; that he was not in Helena in May until the 28th; that he had no recollection of Toney serving him with papers in front of the Cleborne Hotel when he got off the train; that he was never served by Toney, the deputy sheriff, with any papers of the kind in this case, during 1925.
Mrs. Elizabeth Walker, the mother of Mrs. John M. Quarles, who is 69 years old, testified that she lived in the home with Mr. Quarles, and had for the last seven years; was living with them in Little Rock in May, 1925, where they had been all the year, and that they moved away from Little Rock on May 29, 1925; that for ten days or two weeks previous to that Quarles was in Little Rock all the time on account of the sickness of his wife; that John M. Quarles was in Little Rock on May 20th. He was at home all hours of the day to see his wife, because she was ill, and he did not leave town.
Edgar Toney, the deputy sheriff, testified that he served the original writ of garnishment on John M. Quarles in Phillips county, Arkansas; that the return was in his handwriting, and that it correctly recited the facts, and that he recollected serving it, and he thought it was in front of the Cleborne Hotel; that he remembered his former testimony, and remembered serving this paper on Quarles; he said he was not testifying that he served it for the reason that the return was written by him, but that his memory about the paper is now clearer than it was when he first testified; that he did not think he testified, on November 16, that he had no personal recollection of having served the paper.
In his former testimony he said: He also testified, in the present case, that he read the contents of the writ of garnishment before he served it. Toney was a deputy sheriff, and had been for six years. He said, as deputy sheriff, he had served several papers on Mr. Quarles, but never served but one paper the size of the writ of garnishment. He did not remember ever serving a paper on Quarles at his residence, or giving one to any member of the family, but had always caught him down town.
In order to set aside a decree rendered without notice, it is necessary to make a prima facie showing of a meritorious defense. The appellee in this case in the court below, in order to have the decree set aside, was required to show a meritorious defense, and that the writ of garnishment was never served upon him. The testimony as to a meritorious defense is undisputed and is sufficient. The evidence shows that Quarles did not owe Hunt anything, and, if that is true, this would be a complete defense. The evidence on the question of whether the writ of garnishment was served is conflicting. But Quarles testifies positively that the writ was never served, and he also testifies that he was in Little Rock during the entire month of May, or rather, until the 28th day of May, and was not...
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