Johnson v. Gillenwater , 75 Ark. 114 ( 1905 )

McCurroch, J.,

(after stating the facts.) Under the statute giving the lien claimed by appellee as laborer (Kirby’s Dig. § 5011), the lien is declared to be subordinate to all prior subsisting liens.

The remedy of appellants was complete and adequate at law by a replevin suit for recovery of possession of the mortgaged property for the purpose of foreclosing, the mortgage under the power of sale therein contained. The pleadings and proof present no ground for the interposition of a court of equity, as the object of the suit is not to foreclose the mortgage in equity, but the prayer is that further proceedings under the judgment be stayed, and that the attached property be restored to plaintiffs, from whose possession it is alleged to have been taken. Polk v. Gardner, 67 Ark. 441.

The chancellor erred, however, in rendering a decree against appellants for the amount of appellee’s judgment debt against the Riverside Cumber Company. The temporary restraining order issued at the commencement of the action did not operate as a release of the property from the custody of the attaching officer, or discharge the specific lien which appellee acquired by the levy of the attachment. It continued in the hands of the officer subject to appellee’s lien, and only further proceedings were prevented by the injunction while in force. Kirby’s Digest, § 3998, empowering the court, “upon dissolution of an injunction to stay proceedings upon a judgment or final order,” to assess damages, does not authorize a decree for the full amount of the judgment sought to be stayed, unless it is shown that damages to that extent have been sustained. There is no proof in the record showing that the attached property has been lost, damaged or depreciated in value, so that appellee’s judgment cannot be enforced by a sale thereof. Until that is established, no damage is shown to have been sustained by appellee. The decree is affirmed, in so far as it dismisses the complaint for want of equity; but the affirmance is without prejudice of the right of appellants, or either of them, to assert their proper remedy, as they may be advised.

The decree against appellants for the amount of appellee’s judgment debt is reversed and remanded, with directions to permit further proof to be taken, if the parties so desire, as to the amount of damages sustained by appellee by reason of the injunction, and, upon further hearing of the cause either by the court or by reference to a jury, to render a decree in appellee’s favor against appellants, not inconsistent with this opinion, for any damages shown by the proof to have been sustained by reason of the injunction.