89 Ark. 509 | Ark. | 1909
This suit was brought by L .W. Newbill against W. L. Greer, J. H. Kinsworthy, C. M. Dart, C. L. Silverthorne, and St. Louis, Iron Mountain & Southern Railway Company; and for cause of complaint plaintiff alleges that J. H. Kinsworthy, by his attorney, W. L. Greer, brought an action against him before C. L. Silverthorne, a justice of the peace of Pulaski County, to recover a debt of $25 alleged to be due Kinsworthy; that on the 10th day of January, 1907, all parties appearing, the action came on for trial, and was dismissed as to Newbill; that Greer and Silverthorne entered into a conspiracy to defraud him, and at some time subsequent to the 10th day of January, 1907, Silverthorne, in furtherance of his conspiracy, and despite the fact that he had partially written a record of his proceedings in the action of Kinsworthy against him, with the aid of Greer, procured another leaf or page from another docket of same number, color and size, and pasted it over the minutes of the proceedngs which he had already written, and then wrote a judgment, dictated by Greer, against him for the amount sued for by Kinsworthy; that he had no notice or knowledge of the judgment against him until about the last of May, 1907, when Silverthorne, at the request'of Greer, issued a writ of garnishment against the St. Louis, Iron Mountain & Southern Railway Company, and stopped payment by it of his wages, which was five months or more after the trial of the action of Kinsworthy against him, when his right of appeal had expired; that since May, 1907, he has been greatly harrassed by writs of garnishment of the wages owing him by the Railway Company for work and labor performed, repeatedly issued at the instance of Greer, and compelled to expend his wages in filing schedules at $1.25 each, which was divided equally between Greer and Silverthorne, pursuant to their agreement; that Greer falsely claims to have transferred the judgment entered against him in favor of Kihsworthy to C. M. Dart, and has sent it to Kansas City, in the State of Missouri, for the sole purpose of defeating the exemptions from execution and sale allówed him by the laws of Arkansas; that Kinsworthy, Greer and Silverthorne reside in Little Rock, Arkansas; that a writ of garnishment has been issued in Kansas City, Missouri, at the request of Greer, and has been served upon the Railway Company, and it now holds his wages that he earned in the month of December, 1907, on account of the garnishment, and he has thereby been deprived of his rights as a married man and the head of a family residing in this State, and it is beyond Iris power to claim his wages under the exemptions allowed him, because he cannot claim them in the State of Missouri, he not being a resident of that State. He therefore asks that the judgment entered against him by Silverthorne be, upon final hearing, cancelled for fraud, and that he have judgment in the sum of $200 against Greer, Kinsworthy, and Silverthorne, for damages on account of the loss of time, of the loss of employment by the Railway Company on account of the numerous garnishments, and the detention of his wages.
The defendants demurred to the complaint.
The court overruled the demurrer as to all the defendants, except Kinsworthy, and dismissed the complaint as to him, and, the defendants declining to plead further, found that the judgment rendered against Newbill in favor of Kinsworthy, on the 10th day of January, 1907, was obtained by fraud, and without any notice to Newbill, and that Greer and Silverthorne had no right to enforce the same; and ordered and decreed that Greer and Silverthorne be perpetually enjoined from enforcing or attempting to enforce, or collecting or transferring the judgment, or issuing or causing to be issued any writ of garnishment thereon; and enjoined the Railway Company from paying any money in its hands, belonging to Newbill, to Greer and Silverthorne, and rendered judgment against them in favor of Newbill for $200 damages, and they, Greer and Silverthorne, appealed.
The court found that all the defendants, except Kinsworthy, were duly served with process within the time and in the manner prescribed by law. It found that Kinsworthy was not served, but record shows that he and the other defendants appeared and filed a demurrer to the complaint and asked that it be sustained. This was a sufficient appearance to make the decree binding upon him, until it is reversed and set aside. The defendants having failed to plead further after their demurrer was overruled, but standing upon it, the allegations of the complaint, except as to damages, stood confessed. They are sufficient to sustain the findings of the court. No one appeals, except Greer and Silverthorne, and the decree is valid as to them, except as to damages (Kirby’s Digest, § 6137), and as to that it is reversed, and in other respects, as to Greer and Silverthorne, it is affirmed, and the cause is remanded with directions to the court to ascertain the damages, if any, and render judgment for the same.
