Harder v. Sayle-Stegall Commission Co. , 61 Ark. 66 ( 1895 )

Bunn, C. J.

Jurisdiction of equity.

(after stating the facts). In the first place, this cause should not have been transferred to-the equity court, since there is no equitable question involved, and all the relief sought is obtainable in a court of law.

Who may sue.

The court also erred in sustaining the motion to dismiss on account of the alleged want of interest of appellant in the suit.

Construction of statute.

In Beard v. Wilson, 52 Ark. 290, it was said by this court, after quoting section 3067 of Mansfield’s. Digest, that “it was doubtless the intention of the general assembly in passing this act (section 3067) to give the right of redemption from sales of real estate under any final process from courts of law. The justice or sound policy of a distinction between technical execution sales and sales made in execution of judgments in cases-where attachments have issued is not very apparent.” And we hold that a sale under a judgment and order of a court of law, in a suit in which an attachment issues, is not a judicial sale, from which there can be no redemption under our statute, but that the statute gives, the right of redemption from such sales.”

Effect of conditional "bid at sheriff’s sale.

Por the same reason, we think the provisions of sections 3058 and 3059, Mansfield’s Digest, are applicable to sales under orders of attachment alike as under-execution- sales, and that the motion or complaint states a cause of action. On the other hand, we think the-answers of defendants, if true, constituted a good defense, that is to say, if the bid of Brundidge of the $4,750 was conditional, as alleged in his answer, and that he was not the unconditional agent of his co-defendant, as alleged in its answer, and these facts. were known to the plaintiff (sheriff) personally, or to his deputy making and conducting the sale, before the bid was made, and it was so made on condition, he (the said deputy) should not have received nor cried said bid, and therefore defendants were not responsible under the statute.

But the determination of these questions depends upon the facts in the case to be developed on the trial, in accordance with the pleadings.

The judgment of the circuit court is therefore reversed, and the cause remanded, with directions to transfer to the circuit court, and there proceed as herein indicated, and in accordance with this opinion.