118 Ark. 497 | Ark. | 1915
(after stating the facts). Appellant contends that the court was without jurisdiction to render the judgments. It insists that the Wood Grocery Company had no notice of the proceeding and that the judgment nunc pro tunc against it is therefore void.
The attorneys who represented the Wood Grocery Company in the former litgation and A. P. Campbell, the manager of said company, now one of the owners of its ■successor, were both in court, both testified unequivocally that a judgment was in fact rendered against the Wood Grocery Company by the circuit court; that it prayed and was granted an -appeal therefrom, which was not finally perfected, because a judgment was entered against the Citizens Bank. They and the cashier of the Citizens Bank all testified that the funds garnished were paid to ■the Wood Grocery Company after the intervention of the Commercial National Bank was dismissed in the justice court and before the affidavit and bond for appeal were filed by intervener, upon the understanding that the said grocery company would reimburse the Citizens Bank and hold it harmless on account of such payment if it was compelled to pay the fund to the Commercial National Bank upon -appeal to the circuit court, and the Citizens Bank also became surety upon 'the Commercial National Bank’s appeal 'bond. Said attorney of the Wood Grocery Company and A. P. Campbell, the old manager thereof and one of the owners of its successor, were both in court and the Wood Grocery Company appeared, after the judgment nunc pro tunc was entered, by the same attorney, and moved that the judgment be vacated and set aside for want of notice.
It .will .also, be seen that its attorney was. an attorney for the Citizens Bank, which alleged in its amended complaint the rendition of the judgment in fact against the Wood Grocery Company at the former term, which was entered by the court on this trial nu/nc pro tunc.
It is likewise undisputed that the court not only rendered, hut entered judgment against the Citizens Bank, which had no interest in the controversy except that of stake-holder, being in possession of the fund on the first trial.
All of the attorneys testified that the precedent or form of judgment against the Citizens Bank was prepared by the attorney of the Commercial National Bank, which recovered the judgment in the case, wasi submitted to and approved by the attorneys of the Wood Grocery Company and then examined and approved by the court and directed to be and was entered of record.
On the former appeal this court said that the garnishee bank was in the justice court and had notice that an appeal had been taken from the order dismissing the interplea of the Commercial National Bank, and signed its appeal bond, and it was properly in court, the appeal fey the interpleader bringing up the case as against it. The only question upon the appeal was whether the money in the hands of the garnishee was the property of the claimant or the defendant, Wood Grocery Company, and the court there said, speaking of the Citizens Banlk, which is also appellant here, “If appellant had desired to be relieved of its liability in the case, it should have paid the money into court before the appeal was taken. ”
It was there held that the money garnished in the hands of the Citizens Bank was the property and money of the Commercial National Bank to the amount of $255, and that the Commercial National Bank should have judgment against said Citizens Bank in that amount, its debt, this court saying that the judgment of the circuit court might have been based upon the finding that the money was then in the hands of the appellant, that the judgment might have been erroneous, depending moon the facts before the court, but, “If erroneous, it could have been set aside on appeal, hut the validity of it can not be'attacked except on account of fraud. ’ ’
The court also said what the proper order should have been and how costs should have been adjudged, but that these were matters of error which could have 'been corrected on appeal.
If the garnishee in fact paid the fund garnished over to the Wood Grocery Company before the appellee herein took an appeal from the justice judgment denying its interplea claiming to be the owner of the fund, as the testimony taken in the last trial tends to show, it is a matter as already held, that should have been presented on the former trial in the circuit court, wherein the judgment was rendered against it in favor of the intervener, the appellee herein, which judgment is conclusive, not having ■been appealed from upon that question.
No prejudice resulted from such action, however, since the same result was accomplished as if a proper order had been made refusing to set aside the said judgment.
No prejudicial error is disclosed by the record and the judgment is affirmed.