115 Ark. 216 | Ark. | 1914
Appellant instituted this action before a justice of the peace in Cleburne County against the defendant, John'S. Hill, to recover a debt due by contract, and sued out an order of general attachment with a garnishment clause against the appellee, Bank of Higden, summoning the latter to appear and answer as garnishee. Allegations against the garnishee were filed, to the effect that the latter was indebted to the defendant in the sum of $300; and proper interrogatories propounded to the garnishee were also filed. In the same action the plaintiff asserted a lien on a lot of staves for labor performed in hauling the same. It does not appear what became of that feature of the case. The defendant was a nonresident and a warning order was issued and published in a newspaper, but the proof of publication filed as a part of the record shows that there were only two publications.
The justice of the peace rendered judgment in appellant’s favor against the defendant; and, on separate trial of the garnishment, also rendered judgment against the garnishee. The latter appealed to the circuit court and the case was tried there. The record brought up on appeal by the garnishee did not contain a copy of the judgment against the defendant, but the plaintiff tendered an additional transcript showing the judgment, and the court refused to allow it to be considered. Testimony was introduced by each party on the issue as to whether the garnishee was indebted to the defendant, and the court gave a peremptory instruction in favor of the garnishee. Final judgment was entered accordingly, discharging the garnishee, and the plaintiff appealed.
The turning point of the case is, therefore, whether or not the whole record, including that which was offered by appellant to supply the omission in the transcript brought up by the garnishee, shows proper service on the defendant and a valid judgment against him.
The judgment of the circuit court is therefore reversed and the cause is remanded with directions .to set aside the judgment of the justice of the peace, as prematurely rendered, and remand the case to the justice for further procediiigs, unless it be shown by sufficient proof that the warning order had been published the requisite number of times.