133 Ark. 531 | Ark. | 1918
(after stating the facts).
It is next insisted by counsel for the appellants that the court should not have set aside or modified the judgment in the replevin suit until it was adjudged that there was a valid defense to that action. This claim is without merit for as we have already seen the court was not warranted in rendering a personal judgment against Henry and Smith. Counsel for appellants point to the fact that Henry claimed that he had 'sold the mule to Lee Jones and had retained title in it until it was paid for; that Jones had fully paid Henry for the mule at the time the replevin suit was instituted. The court properly excluded this testimony; for if true it could not affect the rights of the parties to the present suit. All that appellant had a right to do in the replevin suit was that the mule should be delivered to them by Henry. This^ the sheriff testified that Henry offered to do. In any event the sheriff took possession of the mule and sold it under the judgment of the court and the proceeds were applied towards the payment of the judgment of appellants in that action. So it will be seen that Henry relinquished all his right or title in the mule and that it was sold and the proceeds applied towards the payment of the judgment of appellants. In no event then was the court authorized to render a personal judgment against appellees in favor of appellants in the replevin suit.
The court therefore was warranted under 'section 4431 of KirbyDigest in setting aside, ¡after the expiration of the term, the personal judgment rendered against appellees in favor of appellants in the replevin suit. So too, under section 3224 of Kirby’s Digest it had the power to quash the execution as having been improperly issued. The judgment will be affirmed.