Kurtz v. Dunn , 36 Ark. 648 ( 1880 )

Harrison, J.

The affidavit for the attachment containing a statement of the cause of action answered the purpose- of both. Tignor v. Bradley, 32 Ark., 781.

It shows sufficient grounds for the attachment, sec. 4107, Gantt’s Digest.

The plaintiff’s right to it to secure and enforce his lien for rent was not affected or impaired by his including in his suit a demand for which he had no lien on the crops.

The property attached could have been condemned only ' for the satisfaction of tlje rent.

And the right to the attachment was not affected by the manner in which the order of attachment was executed by the officer. If the execution of it was not required by the statute, it might have been quashed; or if the return was defective it might have been amended according to the facts; but in either case was no cause for discharging the attachment.

The attachment was therefore improperly discharged.

There should not be, as we held in Holliday Bros. v. Cohen, Ark., 707, upon the discharge of an attachment,

an assessment of damages before the trial in, or final disposition of the case.

And upon appeal from the court of common pleas to the circuit court, the case is to be tried de novo. See section 18, act of December 14,1875, establishing court of common pleas in Conway and other counties. Had, therefore, the attachment been properly discharged, and the judgment against the plaintiff and his sureties not prematurely rendered, and the whole case was before the circuit court, it had no authority, to affirm the judgment of the court of common pleas but should, upon the trial of the case, or after it had otherwise been determined, have assessed the damages de novo.

The judgment of the circuit court is therefore reversed, and the case remanded to it with instructions to reinstate the attachment, and to set aside the judgment of the court of common pleas against the plaintiff, and the assessment of damages, and for further proceedings according to law.