90 Ark. 158 | Ark. | 1909
Appellee, L. F. Strozier, instituted this suit in the chancery court of Pulaski County against appellant, W. L. Greer, and against the St. Louis, Iron Mountain & Southern Railway Company, to restrain appellant from prosecuting an action at law against him in the court of a justice of the peace in the State of Missouri wherein a writ of garnishment was issued and served on the railroad company. He alleged in his complaint that he was a resident of Pulaski County, Arkansas, and also set forth facts sufficient to entitle him to claim as -exempt the wages due him by the railroad company which had been garnished in the action brought against him by appellant in Missouri, and alleged that the Missouri action was instituted for the purpose of depriving him of his opportunity to claim said exemptions. It is also alleged that appellant Greer had assigned the account upon which the action was based to a fictitious person,, one C. M. Dart, in which name the action in Missouri was instituted. Appellee also set forth in his complaint that he had sustained damages by reason of the institution of the action in Missouri. Appellant, Greer, appeared and demurred to the complaint, which demurrer was overruled by the court-, and final decree was then entered restraining said appellant from further prosecuting the action in Missouri; and the court also rendered a decree in favor of appellee and a.gainst appellant Greer for the sum of $38 damages. Greer appealed to this court.
It has been settled by decisions of this court that when a debtor and creditor are residents of the same.State an attempt of the latter to evade the exemption laws of the State of their domicil by bringing suit in another State may be enjoined by a chancery court. Greer v. Cook, 88 Ark. 93; Griffith v. Langsdale, 53 Ark. 71. According to the allegations of the complaint, which must be taken as true, appellant and appellee were both residents of Pulaski County, Arkansas, and appellant had brought a suit in the State of Missouri in an attempt to evade the exemption laws of this State. It was therefore proper to restrain him from so doing.
It appears from the allegations of the complaint that the Missouri suit was based on an open .account, alleged to have been originally claimed against appellee by Franklin Brothers Company, a corporation engaged in the grocery business in the city of Little Rock, and that said company had become bankrupt, and its assets turned over to a trustee in bankruptcy. The complaint alleges, however, that the appellee was not in fact indebted to Franklin Brothers Company in any sum.
It is contended on behalf of appellant that the Franklin Brothers Company was a necessary party to the action, and that Greer as attorney or agent should not have been enjoined from prosecuting the action. The statements of the complaint are to some extent ambiguous in failing to make clear whether or nor it was intended to allege that Greer was the owner of the account and had assigned it as such owner. We think, however, that the allegations of the complaint, when fairly construed, meant to allege that Greer was the assignee and owner of the account formerly claimed by Franklin Brothers Company, and had assigned it to a fictitious person in Missouri, and brought suit thereon for the fraudulent purpose of depriving appellee of his exemptions. If a more definite statement had been desired, the defect should have been reached by a motion to make the complaint more definite and certain. The demurrer did not reach to that question.
We conclude, therefore, that, the chancellor was right in restraining the further prosecution of the suit in Missouri. He erred, however, in rendering a decree for damages without proof. Kirby’s Digest, § 6137; Greer v. Newbill, 89 Ark. 509. The decree restraining the prosecution of the Missouri suit is affirmed; but that part of the decree which awards damages is reversed, and the cause remanded to the chancery court with directions to acertain the damages, if any, and render judgment for same.
