Harris v. Stewart , 65 Ark. 566 ( 1898 )

Wood, J.

The court erred in sustaining the demurrer to the second paragraph of the answer. Assuming, for the purpose of argument, that the allegations of said paragraph are true, it follows that the sheriff acquired control of the property as much by reason of the levy of the attachment in favor of Looney as of that in favor of Dreyfus & Co., and it was his duty to retain control over it under said writ, as much so as under the attachment in favor of Dreyfus & Co., until he was legally deprived of such control. No bond was given in favor of Looney for the forthcoming of the property, in case his attachment was sustained. Consequently, in contemplation of law, the sheriff still had control of the property under the Looney attachment, when judgment was rendered sustaining same, and when execution was issued. The sheriff had the right to take the property by virtue of the lien of the Looney attachment, and to hold same under that attachment, and, if the appellee desired to retain possession of same against said attachment, he should also have given a forthcoming bond in favor of Looney. Moreover, there was nothing to prevent the sheriff from levying upon the property of A. Stewart, although in the possession of a third party, to satisfy an execution creditor of said Stewart. Because W. W. Stewart had given bond for the forthcoming of said property in an attachment proceeding was no reason why it should not be levied upon and sold under execution as the property of A. Stewart, if it really was his property, as it seems to have been. And, if it was not his property, and W. W. Stewart wished to test that matter, as against the execution creditor, there was nothing to prevent him from giving the bond required by Sand. & H. Dig.,- § 3088, which is as follows: “The sale of personal property upon which an execution is levied shall be suspended at the instance of any person, other than the defendant in the execution, claiming the property, who shall execute a bond to the plaintiff,” etc.

It would not be the province of W. W. Stewart to say “This property is not subject to execution as the property of A. Stewart now, because it has already been attached in my possession as his property, and I have giv'en bond to retain possession of same, and for its forthcoming in that case.” That would furnish only the greater reason why he should not suffer the property taken out of his possession under the execution. He could not raise the issue for the prior attaching creditor, or for the debtor, that the property was not subject to execution. That would be a matter for the creditors and the debtor to settle between themselves. If he claims the property, and wants to retain possession of same until the rights of property are are settled, the law points out the way, whether the property be' taken under attachment or execution. Sand. & H. Dig., §§ 406, 3088. When he has pursued neither course, as against the process which is sought to be enforced in favor of Looney, he can not claim that the sheriff and the execution or attachment creditor are trespassers for taking the property of A. Stewart under such process.

Again, that part of the second paragraph of the answer which undertakes to set up that the judgment obtained by Dreyfus & Co. against W. W. Stewart was a fraud as to Looney, although not aptly and clearly stated, was sufficient on demurrer, and constituted a good defense to this action. Looney was not a party to that judgment. If, as can be seen from the statements in this part of the answer, the judgment fixing the value of the property attached and claimed by W. W. Stewart at $1,000 was obtained by the collusion of said Dreyfus & Co. and the said Stewart, for the purpose of enabling the said Stewart to pay off the Dreyfus judgment and retain property of the real value of over $3,000, according to the appraisers, and to remove the same beyond the reach of the sheriff, so that it could not be subjected to the Looney judgment, said proceedings would constitute a fraud against Looney, which he had the right to plead and to establish as a defense to this action. “Judgments,” says Mr. Black, “entered into by the collusion or fraud of both parties to the action are void as to creditors, and may be attacked-in any collateral proceeding by them.” 1 Black, Judg. §§ 291-93.

Whatever this part of the answer lacked in the manner of statement to make it conform to the requirements of good pleading could have been corrected on motion. It showed a good defense. For the errors indicated, the judgment is reversed, and cause remanded with directions to overrule the demurrer, and for further proceedings.