46 Ark. 552 | Ark. | 1885
Lowenstine & Bro. sued Malpas for a debt alleged to be due by contract, and swore out an attachment against his property. The defendant, in his answer, denied the indebtedness, because, as he said, he had transferred to the plaintiffs certain notes of third persons, which they had taken in satisfaction of their demand. He alsc* controverted under oath the ground of attachment. There was a jury trial and a verdict for the defendant, upon which a judgment of nil capiat and for costs was entered against the plaintiffs. And a motion for a new trial was overruled.
At an adjourned term of the court the plaintiffs, upon notice of the defendant, moved for a modification and correction of the judgment, to the extent of awarding all costs growing out of the attachment proceeding against the defendant. They alleged that the testimony upon the trial showed that they had realized a portion of their claim, from collaterals in their hands, after the commencement of the action, and that the court had, in fact, sustained the attachment and adjudged the costs thereof against the defendant, but by a clerical misprision the judgment had not been so entered. At a subsequent term the court granted the relief prayed, ordering the defendant to pay all costs which accrued in the action up to a certain date, when, as it appeared, the plaintiffs had received the balance that was due them.
If the court was dissatisfied with the result it should have ordered another trial, unless the defendant would consent that the costs, down to a certain stage in the proceedings, should be taxed to him. But it could not sustain the attachment, and, at the same time, allow the verdict to stand. For judicial proceedings are required to preserve a semblance of consistency. The verdict declared that Malpa3 owed no debt to Lowenstein & Bro. when he was sued. If this was so, they could have no cause to attach his property.
The judgment is reversed and cause remanded, with directions to set aside all the orders and proceedings which were made and had subsequent to the rendition of the final judgment in September, 1883.