Clements v. Hamilton-Brown Shoe Co. , 99 Ark. 335 ( 1911 )

Hart, J.,

(after stating the facts). The amount sued for is admitted by the pleadings to be due and unpaid, and the judgment therefor will be affirmed.

We think, however, the court erred in dismissing the so-called interplea and in ordering the property in the hands of the sheriff to be sold and the proceeds to be applied to the satisfaction of the judgment. It will be noted that no evidence was introduced, and that judgment was rendered on the pleadings. It is insisted by counsel for appellee that the answer copied in our statement of facts is the separate answer of H. M. Hoffman. It does not so appear on its face; but, conceding it to be so, the pleading filed by the receiver was not an interplea but an answer. He was allowed to become a party to the suit, and the action of the court in-so doing was to substitute him as defendant in the place of Hoffman Investment Company. 5 Pomeroy’s Equity Jurisprudence (3 ed.) § 192. See also Buchanan v. Hicks, 98 Ark. 370.

Therefore the pleading filed by him was an answer. In it he alleges that the property was purchased by H. M. Hoffman, and was by -him sold to the Hoffman Investment Company. He denied that the property was in the hands of the original vendee when the specific attachment was sued out and levied on the property in question. This presented an issue of fact calling for the production of proof.

In construing our statute which gives the vendor a specific attachment for the purchase money, where the property is in the hands of the vendee, the court said: “As the statute expressly applies only to property remaining in possession of the vendee, it can not imply a right on the part of the plaintiff to follow the property in the hands of one who in good faith acquired from the vendee the possession and ownership.” Bridgeford v. Adams, 45 Ark. 136.

We think the answer of the receiver was sufficient to raise an issue upon this question, and to -put the plaintiff upon proof.

The judgment will be reversed, and the cause remanded for a new trial.