Webb v. Van Vleet-Mansfield Drug Co. , 120 Ark. 236 ( 1915 )

Hart, J.

Appellant instituted this action against appellee to recover damages alleged to have been sustained by reason of appellee wrongfully causing an attachment to ¡be levied on her property. Appellee answered and made a general denial of the allegations of the complaint. Nannie E. Webb, appellant, in her own behalf, testified substantially as follows:

I own a store house at Biggers, Ark., in which was situated a stock of drugs owned by my husband, John T. Webb. On the 9th day of December, 1912, my husband executed to me a bill of sale for this stock of drugs and his household goods. The consideration recited in the bill of sale was one hundred dollars. The drugs sold to me were worth between seven .and eight hundred dollars; at least calculation they were worth between six and seven hundred dollars. .Subsequently my husband bought drugs of about the same value of the Van Vleet Drug Co., and placed them in the store house, where my drugs were. Later the Van Vleet Drug Co. caused a writ of attachment to be issued against my (husband and the sheriff came to levy it upon the drugs in my store house. He failed to levy the attachment because the drugs were mine. In about two weeks he came back and levied the attachment upon all the drugs in the store house. Subsequently the drugs were sold under the attachment and I became the purchaser of them for the sum of $114.50.

This was all the testimony introduced and upon motion of .appellee the court instructed the jury to return a verdict in its favor. This was error. The question of whether or not the bill of sale by John T. Webb to appellant, his wife, was fraudulent, should have been submitted to the jury.

It is true the husband remained in possession of the goods after the execution of the hill of sale but appellant testified that she had bought the goods of him. It might .also be inferred from her testimony that she protested against the levying of .the attachment upon her drugs. Under these circumstances the continued possession by the 'husband, of the drugs after the alleged sale was not conclusively fraudulent, but the question of whether or not the sale of the drugs was fraudulent, should have been left to the jury. It does not follow, however, that the judgment must be reversed for this error. It is the settled rule of this court to reverse judgments only for errors that are prejudicial to the rights of -appellants. Appellant testified that she purchased the whole_ stock -of drugs at the attachment sale for $114.50. She also testified that the property owned by her was worth at least between six 'hundred and seven hundred -dollars, and that the portion owned by her husband was worth an equal sum. Only two months elapsed between the levying ¡of the attachment and the sale to the ¡appellant under it. By the sale she obtained title to the whole of the stock of -goods. Thus she received back the drugs which she claimed were her own and the stock belonging to her husband which she said were equal in value to the portion of the stock claimed by her and this she stated to be worth at least calculation between six and seven hundred dollars. Therefore, it is plain that she was not prejudiced by the action of the court in directing a verdict against her. Again she claims that the judgment should be reversed because she owned the store house in which the drugs were situated and that this was closed for a time of two months by reason of the levy of the attachment. This was -done by the sheriff and the record does not show that it was done by the direction of appellee. Therefore, it is not responsible in damages to appellant on this account. We find no prejudicial error in the record and the judgment will be affirmed.