151 Ark. 557 | Ark. | 1922
Appellants are merchants and instituted this action against the defendant, Thomason, to recover the sum of $546.07. At the commencement of the action they sued out a writ of garnishment against appellee (a corporation) as garnishee, alleging that appellee was indebted to the defendant in the sum of $1,000. In the original complaint it was alleged that Thomason was indebted to appellant in the sum of fifty-eight and 96/100 dollars for goods and merchandise sold and delivered, the particulars of which were set forth in an exhibited account, and that Thomason was further indebted to appellants in the sum of four hundred eighty-seven. and 11/100 dollars, “as evidenced by forty-six promissory notes, as follows.” Then is set forth forty-six separate paragraphs, each describing a note for the sum of $10, giving date of execution, date of maturity and interest rate. Neither copies of the notes nor the originals were filed as exhibits with the complaint, but the complaint contained a statement that the original notes were held subject to the orders of the court.
There was a demurrer to the complaint, which the court does not seem to have passed upon, but on the filing of the demurrer appellant filed an amended complaint stating that the defendant was justly indebted to appellant “in the sum of $546.07 on account for goods and merchandise sold and delivered by the plaintiff to the defendant during the year 1920, memoranda of which were attached hereto, together with all the credits to which defendant is entitled, leaving dne and unpaid the sum • above mentioned. ’ ’ The amended complaint contained the further statement that appellee “is'indebted to the defendant, H. B. Thomason, in the sum of $800.” With the amended complaint there were filed, as exhibits, copies of forty-six written instruments, all in the following form except as to dates, amount and terms of payment, each being for the sum of $10.
“$10.00
Screeton, Ark., 8/4/1919.
“Received of S. A. Robertson & Co.
“Merchandise Coupon No. 1098
“Good for $10.00 which I agree to pay for within thirty days from date, with interest at the rate of 10 per cent, per annum from maturity until paid.
• “H. B. Thomason.”'
There was no further process issued against either the defendant or against appellee as garnishee. The court thereupon entered a judgment dismissing the garnishee, but overruled a demurrer of the defendant and rendered judgment against him for the amount of the debt. There has been no appeal prosecuted by the defendant Thomason, and the plaintiffs alone have appealed.
It will be observed from a consideration of the complaint that it declares upon account in the sum of $58.96, and 46 promissory notes, each for the sum of $10. The action was commenced in the circuit court, and since each of the separate causes of action set forth in the complaint were for less than the sum of $100, the court had no jurisdiction of the subject-matter of the action. American Soda Fountain Co. v. Battle, 85 Ark. 213. This being true, the garnishee could not be held in a case where there was no jurisdiction of the subject-matter of the principal action. The amendment, if it bei construed to state a cause of action upon an account and not on the written instruments, the same as in the original complaint, sought to introduce a new cause of .action within the jurisdiction of the court, and this was tantamount to the commencement of a new suit (Wood v. Wood, 59 Ark. 441; Patrick v. Whitely; 75 Ark. 465), and the garnishee was not liable unless brought into court under new process. Schiele v. Dillard, 94 Ark. 277.
The court was correct therefore in refusing to hold the garnishee and in dismissing the original garnishment for want of jurisdiction.
Affirmed.