134 Ark. 109 | Ark. | 1918
(after stating the facts). It is earnestly insisted by counsel for the plaintiff that the court erred in sustaining the defendant’s plea of res adjudicata. The record shows that the treasurer • instituted the present action against the bank to recover from it the funds in its hands belonging to the drainage district before Brown instituted his suit in chancery against the drainage district to recover the amount due him by it and in which the bank was garnished. Therefore it is claimed that this case is governed by the rule of priority in assuming jurisdiction. One reason given is that, if the principal debtor should be bound by garnishment proceedings subsequently instituted in another court, he would be placed entirely in the power of his debtor who might, by confessing in his answer in the garnishment proceedings a smaller indebtedness than actually existed, practice a fraud upon his creditors. Then, too, a collision would be produced in the jurisdiction of courts' which would embarrass the administration of justice.
It is also pointed out that if the question of the indebtedness between the principal defendant and the garnishee could be litigated in the subsequent proceedings the garnishee might be compelled to pay the same debt twice. In support of their position counsel cite Black on Judgments (2 ed.), vol. 2, § 594, and the decisions of courts of numerous States which need not be cited, for the reason that the principles of law contended for are firmly established.
We do not think, however, the rule contended for is applicable to the facts of the present case and the issue raised by the pleadings. It is true the court had jurisdiction of the persons and of the subject-matter in the present suit which was instituted first, and that ordinarily the rule of priority in assuming jurisdiction would govern. Subsequently, however, Brown instituted a suit in chancery against the drainage district to recover what it owed him, and the bank was made a garnishee in that ¡suit. Equity was the proper forum in which to bring that action. The board of directors of the drainage district was an agency of the government created for public purposes, and on the ground of public policy was not subject to garnishment at law; Plummer v. School District No. 1 of Marianna, 90 Ark. 236, and The Goyer Co. v. Williamson, 107 Ark. 189.
Of course, under' the authorities above cited, the drainage district would not ordinarily have been concluded by the adjudication in the garnishment proceedings of the amount due by the bank. The bank, however, by its answer and cross-complaint made that an issue and asked that a summons be issued and served on the district on its cross-complaint. This was done. The district filed a demurrer to the answer and the cross-corn-plaint of the bank raising this issue. The demurrer was sustained by the court, but the bank was given thirty days in which to amend its answer and cross-complaint. It is true the record does not ¡affirmatively show whether or not this amendment was made by the bank. But the record does affirmatively show that the case was heard upon the complaint and amended complaint of the plaintiff, the answer and cross-complaint of the defendant and upon the allegations and interrogatories filed against the garnishee, the Bank of Corning, the answer to the interrogatories and cross-complaint of the Bank of Corning and upon the depositions of certain named witnesses.
The court specifically recites in the decree that it found from the answer and cross-complaint of the bank and the testimony introduced that the sum of $8,852.25 was due from the Bank of Corning to the drainage district. • The court also found that the drainage district owed Brown a sum in excess of that amount by several thousand dollars. The bank was ordered to pay the plaintiff said sum of $8,852.25, and it was specifically decreed that, upon the payment of said sum to the plaintiff, the Bank of Corning be discharged from all liabilities on account of every claim of every kind by the drainage district or its treasurer. Here then is a direct adjudication of the very matter now at issue. The presumption is, in the absence of a showing to the contrary, that the bank ¡amended its pleadings pursuant to the leave given it by the court, and that proof was taken on the issue as to the amount the bank owed the drainage district. This is shown by the fact that the record shows that the case was heard upon the answer and cross-complaint of the bank .as well as the other pleadings in the case, and that the court adjudicated the issue on this question from the proof introduced and made a specific finding and a specific direction in the decree on this question. In other words, we think the record of the proceedings in the chancery court shows that that court expressly adjudicated the question of the amount due the drainage district by the bank. If the drainage district had preserved its exceptions to the action of the court in passing upon this question in the equity suit and had taken an appeal from an adverse decision of the chancellor, it may be that, under the principles of law above decided, this court would have reversed the decree. No appeal, however, was taken from that decree. Inasmuch as it expressly adjudicated the questions now at issue, the court in the instant case properly sustained the bank’s plea of res adjudicata.
The decision of the chancellor in the equity case was a final adjudication of the only question which is .sought to be determined by this appeal.
In the case of Church v. Gallic, 76 Ark. 423, the court quoted with approval from Black on Judgments, the following :
“The fact that a judgment was obtained after the commencement of the suit in which it is pleaded does not prevent its being a bar. It is the first judgment for the same cause of action that constitutes an effective defense, without regard to the order of time in which the suits were commenced. Hence it follows that .a prior judgment upon the same cause of action sustains the plea of ¡a former recovery, although the judgment is in an action commenced .subsequent to the one in which it is pleaded. ’ ’
To the same effect see Henry Quellmalz Lbr. & Mfg. Co. v. Day, 132 Ark. 469.
It follows that the judgment must be affirmed.