271 S.W. 703 | Ark. | 1925
T. E. Ray conveyed certain lands in Chicot County to S.A. Wilson by warranty deed, which recited notes executed by Wilson to Ray for unpaid purchase money. These notes were assigned by Ray to appellant, and Wilson subsequently conveyed the land to appellee Ross and one Van Ness, the grantees expressly assuming payment of said purchase money notes. The notes were not paid, and appellant instituted this action against Van Ness and appellee Ross to recover the amount of the notes and to enforce the vendor's lien. At the commencement of the action appellant filed allegations and interrogatories to the Monroe County Bank and the First National Bank of Fort Smith, respectively, as garnishees, and writs of garnishment were duly issued and served, and each of the garnishees reported that it had funds in its hands belonging to appellee Ross. Ross appeared by attorneys and filed an answer on the merits, denying the allegations of the complaint with respect to his having assumed the payment of the notes held by appellant and also filed a motion to quash the garnishments. The court sustained the motion and dismissed *755 the garnishments, and an appeal has been prosecuted to this court.
The effect of the dismissal of the garnishments was to end the proceedings as to those parties, and was a final order, and appealable. Helton v. Howe,
Appellee relies on the rule in some jurisdictions, and the one said to prevail generally in the absence of statute, that a personal judgment should not be rendered in a suit to foreclose a mortgage or other lien except for the deficiency after the report of the sale of the property showing that the amount realized from the sale was not sufficient to pay the debt. Cases in support of that contention are cited in the brief of counsel. Conceding that such is the general rule, it is changed by the statutes of this State. Crawford Moses' Digest, 6240, 6242, 6244. The first section mentioned above provides that it shall not be necessary in such proceeding to enter an interlocutory judgment, "but final judgment may in such cases be given in the first instance." Section 6242 reads as follows: "In an action on a mortgage or lien, the judgment may be rendered for the sale of the property and for the recovery of the debt against the defendant personally." Section 6244 provides that, if the mortgaged property "does not sell for a sum sufficient to satisfy the amount due, an execution may be issued against the defendant, as on ordinary judgments." The purpose of the latter provision was to continue the right to have process as to any deficiency, but it does not bar any other available remedy.
In the recent case of McCormick v. Daggett,
There is no principle of equity which requires the holder of a security to exhaust his security before resorting to other remedies for the enforcement of personal liability of the debtor. Final judgment should not be rendered against the garnishee and in favor of the plaintiff until the latter's right to recover from the defendant is established. Norman v. Poole,
The decree of the chancery court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.