Woolverton v. Freeman

• Decision Date: 09 December 1905
• Parties: WOOLVERTON v. FREEMAN
• Court: Arkansas Supreme Court

91 S.W. 190

77 Ark. 234

WOOLVERTON v. FREEMAN

Supreme Court of Arkansas

December 9, 1905

Appeal from Conway Circuit Court; WILLIAM L. MOOSE, Judge; reversed.

STATEMENT BY THE COURT.

This is a garnishment proceeding, originally brought in justice court by appellant against the appellee in an effort to collect a judgment, interest and cost, all amounting to about $ 25, due from Dick Freeman, appellee's husband, to appellant. The pleadings making up the issues in the cause consist of the allegations and interrogatories filed by the appellant appellee's answer thereto, and appellant's denial or objection thereto of record. Appellee, having previously filed her answer, did not appear in justice's court for trial, but made default. After hearing the testimony, the issues and findings were for the appellant, and judgment entered accordingly.

Later appellee filed proper affidavit, and took an appeal to the circuit court, where the cause came on, and was tried at the October term, 1903, on the same pleadings filed in the justice's court, which resulted in a verdict and judgment for appellee. In the meantime, appellee did not supersede the justice's judgment against her by bond, as provided by law, and a short time after it was rendered, appellant caused execution to be issued and levy made on three hogs owned by appellee and a cow which she and her son, Will, had bought on credit from Mrs. Ethrage. At the execution sale, appellant bought the cow for $ 20, and the hogs for $ 6. Appellant appellee and Mrs. Ethrage all testify that there was still due on the purchase money for the cow $ 16 or $ 17, which after the sale, appellant paid. He testifies that he paid this in order to discharge the purchase money lien held by Mrs. Ethrage, and clear his title to the cow; and that he understood that it was both right and necessary for him to do so. Appellant says he paid all the property was worth at the execution sale. Mrs. Ethrage testifies that she sold the sow on time for $ 25, and that she was worth more than $ 20.

She sold the cow to Mrs. Freeman and her son, Will, to be paid for in work; and if not paid for in the fall, they were to pay the balance in money. They had paid, when the cow was levied on, about $ 8. The cow was levied on and sold before fall.

Appellee in her answer to the allegation and interrogatories admitted that she had on her premises property belonging to defendant Dick Freeman, of the value of $ 6, but in her testimony on the trial of the cause she swears that she did not owe the defendant anything, and she made no claim to his property on her premises or in her possession.

Appellant asked the court to instruct the jury as follows:

"1. You are instructed that this is a suit on appeal from justice court from a judgment rendered there, upon the allegations and interrogatories of the plaintiff and the answer thereto as to whether the garnishee has her in her possession any property belonging to the defendant, Dick Freeman, and whether or not she is indebted to him; and this is the only question to be settled in this suit.

"2. You are instructed the garnishee is not entitled to recover in this suit the property or its value taken and sold under execution issued on the judgment in favor of the plaintiff and against her in the justice court.

"3. You are instructed that the garnishee would be entitled to recover from the plaintiff, if at all, only the value of her undivided interest in the cow; and that she would not be entitled to recover of the plaintiff for the value of Will Freeman's interest, who owned the cow jointly with her.

"4. You are instructed that the garnishee, if she recovers in this suit, would not be entitled to recover the amount plaintiff paid out on the cow to discharge the purchase money lien held by Mrs. Ethrage. She would be only entitled to recover the value of the property taken, less the amount plaintiff paid out to discharge the lien debt."

The court refused each of the instructions, and plaintiff excepted.

The court then, of its own motion, peremptorily directed the jury to "return a verdict for the garnishee, and assess her damages at the value of the property taken and sold under the execution."

Appellant objected to this instruction, and saved exceptions.

Verdict and judgment for garnishee for $ 34. Appellant then moved for a new trial, setting out in separate paragraphs errors of the court in refusing instruction 1, 2, 3, and 4 asked for by appellant, and giving the verbal instruction quoted above. Also surprise, and that the verdict was contrary to law, and contrary to the evidence.

Motion overruled, exception saved, appeal prayed and granted.

Judgment reversed and cause remanded.

W. P. Strait, for appellant.

The court erred in giving instructions 1 and 2 asked for by appellant, and in giving its peremptory instruction. The pleadings and issues having been made up in the justice's court, the circuit court on appeal is bound by them. 46 Ark 132; 30 Id. 560. Facts proved but not averred in pleading can avail nothing. 41 Ark. 393; 29 Id. 500. On appeal the circuit court can render no judgment that the justice could not have rendered. 44 Ark. 377; 42 Id. 485; 36 Id. 222; 2 Enc. Pl. & Pr. 365, and cases cited; 27 Ark. 508; 6 Id. 371; Ib. 41; 9 Id....