42 Ark. 410 | Ark. | 1883
Appellants, in March, 1881, before a justice of the peace, recovered a. judgment against T. J. Simpson and another. On the seventeenth of October, following, they sued a writ of garnishment against John Duval and M. Britt, to appear and answer as to their indebtedness, etc., to Simpson. On the twenty-third of October, Simpson gave Winter & Oo. notice of his intention, and on the thirtieth, filed a schedule on oath, of articles of property claimed by him as exempt, including the debt due him from Duval and Britt, and prayed that the writ of garnishment which had been issued for that debt might be superseded.
The plaintiffs demurred to the schedule, alleging, for grounds, that defendant was not entitled to have the debt due him exempted; which demurrer the court sustained; entering on his docket an order to that effect, and that no supersedeas issue, and that the garnishees be held to answer all interrogatories and allegations. There was, however, a supersedeas as to the other property in the schedule. Defendant gave notice of an appeal.
The parties then all consented to á judgment against the garnishees, to be suspended and await the action of the Circuit Court upon the appeal irom the order sustaining the demurrer to the schedule.
. In the Circuit Court Winter & Co. moved to dismiss the appeal for want of jurisdiction in the Circuit Court. This was overruled, and they renewed the demurrer to the schedule, which was also overruled. The court then entered judgment that the supersedeas issue, and that the judgment of the justice against the garnishee be overruled. From this the plaintiffs here appealed.
The motion to dismiss the appeal was based on two grounds:
1. Recause no appeal could be taken from an order of a justice refusing to issue a supersedeas on a schedule.
2. Because the garnishment was a separate suit, and defendant could not appeal from a judgment against the garnishment.
The grounds of the demurrer seems to have been that a chose in action could not be scheduled.
By act of March 9, 1877, providing the practice in securing exemptions, it is expressly declared that an appeal may be taken to the Circuit Court from any order or judgment ronc|ere(j by the justice of the peace, upon the filing of the affidavit and executing the bond required in other cases of appeal. (Pamph. Acts 1877, p. 53.) It has direct reference to any order made upon filing the schedule, and of course embraces an order striking, as it were, a portion of the schedule out, and denying a supersedeas as to that. The remark of our former learned and remarkably careful associate, Mr. Justice Harrison, in Smith v. Ragsdale, 36 Ark., 297, to the effect that an appeal would not lie in such cases, but that mandamus was the proper remedy, was not in fact necessary to decide the case then in judgment. The decision upon other points was quite correct. The remark was based upon a very correct estimate of the .general nature and function of the writ of mandamus, and the attention of the court was not called to the peculiar provision in the act of 1877. I claim to assume my share of responsibility for an inadvertence into which the court fell, but the declaration is not correct. ' An appeal in such cases properly lies by force of the statute.
Upon the second ground it is plain that the order affected only the defendant in the original suit, and was made in that suit, upon a matter which, if left at rest, would deprive defendant of his rights to retain the special chose in action as his property. It could not concern the garnishees whether the debt was exempt or not. They were willing to the judgment against them for whom it might concern.
Upon the merits it has already been held by this court that choses in action are property, and may be specifically scheduled, and that the schedule will protect as well against garnishment, which is a kind of execution, as against direct process to be levied on tangible property. Probst & Hilb v. Scott, 31 Ark., 652.
We find no error.
Affirm.