61 Ark. 33 | Ark. | 1895
(after stating the facts.) The only question here relates to the validity of the judgment rendered by the circuit court upon the attacnment bond. The court gave judgment not only for forty dollars damages, but also for the return of the property or its value — $311.25. This amount exceeded the jurisdiction of the justice of the peace. In Whitesides v. Kershaw, 44 Ark. 377, it was said that on appeal- the jurisdiction is derived from and dependent upon the appeal; and the circuit court can render no judgment that the justice could not have rendered. The judgment of the circuit court for $311.25 was beyond the jurisdiction of the justice, and therefore void.
Neither was it proper for the court to render juderJ ° ment for damages, and also for a return of the property ■or its value. Where the attached property has been sold under a lawful order of the court, and the attachment is Afterwards dissolved, the court should not order it returned, but should assess damages sufficient to cover the value of the property at the time it was seized, and interest thereon to the day of trial.
When property is taken and sold under an attachment wrongfully issued, the measure of damages is the value of the property at the time it was seized under the writ, with interest at six per cent, to the date of the trial. Sutherland on Dam. sec. 512; Porter v. Knight, 63 Iowa, 365; Blass v. Lee, 55 Ark. 329; Trentman v. Wiley, 85 Ind. 33. From the amount of damages thus Awarded, there should in this case be deducted any portion of the proceeds of the attached property that have been returned to the owner, and also the amount adjudged in favor of plaintiff, if the damages assessed are greater than the judgment in favor of plaintiff, and a judgment rendered in favor of defendant for the balance.
As the error in this case is apparent from the face of the record, no motion for a new trial was necessary. Smith v. Hollis, 46 Ark. 21; Steck v. Mahar, 26 Ark. 536; Ward v. Carlton, 26 Ark. 662.
The judgment of the circuit court is reversed, and the cause remanded, with an order to assess the damages in the attachment proceeding in accordance with the rules above set forth.
If the damages claimed by defendant on account of the issuance of the attachment exceed the sum of three hundred dollars, his remedy will be by an original suit •on the attachment bond in the circuit court.
