49 Ark. 100 | Ark. | 1886
On the 17th of April, 1885, one J. F. Asher executed and delivered to the appellant, Smith, a deed of trust whereby he conveyed certain personal property and crops to secure an indebtedness owing to one L. A. Fitz-patrick, and payable on the 15th of October, 1885. On the same day he also executed and delivered to the appellee, Frierson Moore, a deed of trust whereby he conveyed the same property to secure an indebtedness due and payable to John P. Moore on the first of November, 1885. The deed to Smith was first filed for record in the county wherein the grantor resided, and the lien thereof became prior in law to that of the deed to Moore. Asher made default in the payments secured by these deeds and was permitted to remain in possession of the property thereby conveyed. This default continued until the 22d of February, 1886, when Frierson Moore brought this action against Asher, in the Lee Circuit Court, to recover possession of certain of the property conveyed in trust to him. He executed to the proper officer the bond required by law, and the officer in accordance with the order of delivery in his hands, took from the possession of the defendant, Asher, seven mules and one thousand bushels of corn, and upon the execution of a bond to the plaintiff by John C. O. Smith and L. A. . Fitzpatrick, sureties, “to the effect that the defendant shall perform the judgment of the court in the action,” the property was released from ihe custody of the officer and delivered to Smith by the direction of the defendant Asher. On the 28th o March, 1886, Smith filed an application to be made a party, and therein alleged that, on the 17th of April, 1885, the defendant, Asher, executed to him a trust deed of the property seized by the Sheriff under’the order of delivery issued in this action; that the lien of the conveyance to him was prior to that under which plaintiff claimed the right of recovery; that by virtue of the deed to him he was the owner of the property in controversy and entitled to the possession of the same; and that there was at that time pending in the Phillips Circuit Court another suit for thCiSame cause of action and between the same parties. On the 28th of April, 1886, the application of Smith came on for hearing, and, on the objection of the plaintiff, the court refused to make him a party and struck his application from the files of the court. Thereupon, judgment by default was rendered against the defendant in favor of the plaintiff lor the recovery of the property restored to him by the officer, and against him and Smith and Fitzpatrick on his retaining bond for the value of each of the articles of property so restored, to be collected in the event defendant failed to deliver the same to the Sheriff. Smith filed a motion for a new trial, saved exceptions and appealed to this court.
There is no question raised here as to the right of Smith to appeal from the judgment of the court refusing to make him a party to this action and striking from the files of the court his application to be made a party. The only question is, ought the court to have made Smith a party?
The judgment of the court below is, therefore, reversed, and this cause is remanded with instructions to the court to make Smith a party, and for other proceedings.