107 Ark. 142 | Ark. | 1913
(after stating the facts). According to the allegations of the complaint an attachment suit was brought before a justice of the peace against a non-resident defendant and a writ of garnishment was sued out against appellant. Appellant appeared in court and answered that it had a sum of money in its hands belonging to defendant amounting to $249.40. Appellee filed its interplea claiming the money. The justice of the peace dismissed the interplea because it did not comply with section 391 of Kirby’s Digest. Appellee filed its affidavit and bond for appeal, and appellant became surety on' its appeal bond. Appellee had a right to prosecute an appeal from the judgment of the justice of the peace dismissing his interplea. Bloom v. McGehee, 38 Ark. 329; Mitchell v. Woods, 11 Ark. 180; Hershey v. Clarksville Institute, 15 Ark. 128.
According to the allegations of the complaint appellant paid the money in its hands to the plaintiff in the attachment suit after the appeal was taken. It now contends that it had a right to do this because no appeal was taken in the attachment suit. This was not necessary to be done in order to preserve the rights of the interpleader. Appellee, as interpleader, was not interested in the result of the attachment suit. It claimed the funds in the hands of the appellant as its own. The court had dismissed the interplea of the appellee and the appeal was necessary in order to preserve its rights. Appellant was in court and had notice that appellee hád taken the appeal and appellant signed its appeal bond. It is true the appeal bond recited that the appeal was taken on the part of the interpleader only; but as we have already seen, appellee was not interested in the judgment on the attachment, and had a right to appeal from the order of the justice of the peace dismissing its interplea. 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. When the interplea was filed setting forth the claim of'appellee to the funds an issue was formed, thereon between him and the plaintiff and that issue was whether the money in the hands of the garnishee was the property of the claimant or the principal defendant. As above stated, if the garnishee desired to relieve itself of liability in the matter it should have paid the money into court to be delivered to whichever party the court should decide was entitled to it. Not having done so, it can not in this suit by alleging that it paid the money to the plaintiff in the * attachment suit, after the appeal of the interpleader was taken, relieve itself of liability. In the judgment of the circuit court on appeal the court found from the evidence “that the money and draft garnisheed in the hands of the Citizens Bank is the property and money of said Commercial National Bank to the sum of $255, and that the said Commercial National Bank of Chicago should have judgment against the said Citizens Bank in the sum of $255, its debt.” It will be seen from this that the ¿judgment of the circuit court might have been based upon a finding that the money was then in the hands of appellant.
The judgment might have been erroneous and this would depend upon the facts before the court. If erroneous, it could have been set aside on appeal but the validity of it can not be attacked except on account of fraud. In the case of Pattison v. Smith, 94 Ark. 589, the court held (quoting from syllabus): “A judgment or decree can not be impeached for fraudulent acts or testimony, the truth of which was or might have been in issue in the proceeding which resulted in the judgment assailed, but must be impeached by proof of a fraud practiced in the procurement of the judgment itself.”
The proper order of the circuit court would have been to have ordered the garnishee discharged upon payment of the money found in its hands to the claimant, who was adjudged by the court to be entitled to it. Then, too, the court should not have adjudged the costs against the garnishee. But these were errors which might have been corrected oh appeal.
Again it is contended that the effect of the order of the circuit court permitting appellee to amend its petition as interpleader was in effect the commencement of a new suit, but we do not think so. The court had a right to permit appellee to amend its petition after appeal to the circuit court. Sherrill v. Bench, 37 Ark. 560; See also, Sannoner v. Jacobson, 47 Ark. 31.
Finally it is insisted that the court erred in sustaining the demurrer to the complaint because the complaint alleges that the circuit court did not render any judgment against appellant, and that the judgment in question was entered of record by misprision of the clerk. The allegations of the complaint on this point are as follows:
“That at the February, 1911, term of the Circuit Court of Fulton County, towit.: On the 4th day of said term, the same being on the second day of March, 1911, the defendant herein, the Commercial National Bank of Chicago, by some unlawful means, and unknown to this plaintiff, and unauthorized by the court, had entered upon the records of this county by fraud, mistake or clerical misprision a personal judgment against this plaintiff, the Citizens Bank of Mammoth Spring, Arkansas, in the sum of $255, which said personal judgment and purported findings are set forth in said record entry which are in words and figures as follows, to,wit:
(Here the judgment is copied in the complaint.)
“That said judgment was wrongfully and fraudulently and without either the authority or an order of the court entered of record against this plaintiff, and that this plaintiff, the Citizens Bank, was not indebted to said defendant, the Commercial National Bank, in the sum of $255, or any other sum at that or any other time. Neither was this plaintiff surety on bond, note, bill or otherwise for any person or persons to the defendant, the assignor of defendants, whereby it was or is under obligations of any kind whereby any just judgment either in law or equity could be, or could have been, at that time rendered or legally entered of record against this plaintiff, in this or any other sum whatever. ’ ’
It will be observed that there is no direct allegation in the complaint that no judgment was rendered by the court against appellant, but in the case of the St. L. I. M. & S. Ry. Co. v. Moss, 75 Ark. 64, the court held that, although the material allegations of a pleading are ambiguous and uncertain, if the inference may be drawn therefrom by a fair intendment that facts exist sufficient to constitute a cause of action, the defect must be corrected by a motion to make more definite and certain, and not by demurrer. See also, Greer v. Strozier, 90 Ark. 158.
Again in the case of Stewart v. Fleming, 96 Ark. 371, the court held that indefiniteness in a pleading should be reached by a motion to make more definite. When tested by this rule the sufficiency of the complaint should have been reached by a motion to make more definite and certain. In other words, the matters set, out in the complaint when tested by demurrer are sufficient to allege that the circuit judge who presided on the 2d day of March, 1911, did not render a judgment against appellant in the case of Wood Gro. Co. v. The Commercial National Bank of Chicago, and the Citizens Bank of Mammoth Spring, Arkansas, but that a judgment against appellant in said cause was entered of record by misprision of the clerk and without an order of the court rendering the same. These allegations, if proved by appellant, would entitle it to the relief prayed for. Therefore, the court erred in sustaining the demurrer to the complaint.
It is true that the complaint is very long and involved. It contains much redundant, immaterial and irrelevant matter, but this should have been reached by motion to strike out, and not by demurrer.
Our Civil Code, section 103, provides that the court at any time before the defense shall on motion of the defendant strike out of the complaint any cause or causes. of action improperly joined with the others. If the appellee thought the complaint was defective in this respect, such defect should have been met by motion to strike out and not by demurrer. Terry v. Rossell, 32 Ark. 478; Dyer v. Jacoway, 42 Ark. 186; Ashley v. Little Rock, 56 Ark. 391.
Because the court erred in sustaining the demurrer to the complaint, the judgment must be reversed and the cause remanded for further proceedings according to law.