Ferniman v. Nowlin , 91 Ark. 20 ( 1909 )

Wood, J.,

(after stating the facts). First. The landlord and tenant both testified that the articles of supplies sued for on’ the account were furnished to enable the,tenant to make the crop. The supplies were furnished for that purpose. That is all the statute contemplates. The fact, if proved, that the tenant could or could not have made the crop without other supplies than those furnished by appellees would not tend to show that they had not furnished supplies to enable the tenant to make the crop, or that the supplies furnished by them were unnecessary.

The court did not err in refusing to permit the witness to answer the questions propounded.

Second. After Burrus refused to permit appellees to apply the cotton on their account against him for supplies, appellees had no longer the right to retain possession of the property.

And after Burrus had delivered the cotton to appellant at appellees’ gin the remedy of appellees to have their lien declared and 'enforced was by specific attachment of the cotton in the hands of appellant as prescribed in sections 5040 and 5041, Kirby’s Digest. Upham v. Dodd, 24 Ark. 545; Reavis v. Barnes, 36 Ark. 575; Knox v. Hellums, 38 Ark. 413.

The conduct of Burrus in refusing to allow appellees to apply the cotton on his account for supplies with them, and his delivery of the cotton to appellant, constituted grounds for attachment under sections supra.

Appellees brought suit in the justice’s court, alleging the facts constituting their lien, but without asking for the writ of attachment to seize the property. The attachment was only an incident to the suit, and was a method prescribed for impounding the property. It could have been issued after the suit was begun in the justice’s court or afterwards in the circuit court on appeal.

But appellant brought suit in the circuit court against appellees, before their lien expired, to replevy the cotton, and thus the cotton was impounded in the hands of appellant through the process of the circuit court, to which court the cause that had originated in the justice’s court had gone up on appeal. The consolidation of the causes brought the issue before the court as to whether appellees were entitled to judgment for their claim, and also as to whether they were entitled to the possession of the property. Appellant has urged no objection to the consolidation here.

The facts constituting appellees’ claim and lien were alleged and proved. The court might have rendered judgment in their favor, and then directed execution to be levied on the cotton if ' still in the hands of appellant.

The appellant having taken possession of the cotton under bond, the court did not err in rendering judgment against appellant for the cotton or its value in the sum of $100. This sum did not exceed the amount for which appellees were entitled to judgment against Burrus.

While the proceedings were irregular, they were not prejudicial, and the instruction given at the request of appellees was not prejudicial error. All parties in interest were before the court.

The court had jurisdiction, and no other result, in justice, under the law and evidence, could have been attained. Appellant could not recover possession of the property from appellees without tendering the amount due them, for the lien of appellees was superior to that of appellant. Tomlinson v. Greenfield, 31 Ark. 557; Buck v. Lee, 36 Ark. 525. See also Pape v. Steward, 69 Ark. 306; Noe v. Layton, 69 Ark. 551, as to innocent purchaser of tenants’ crops.

We find no evidence in the record to warrant the giving of the prayers of appellant for instructions. The judgment is correct.

Affirmed.