Bank of Pangburn v. Tate , 147 Ark. 292 ( 1921 )

Humphreys, J.

This appeal involves the priority of liens growing out of writs of attachment levied upon the equitable interest of J. W. Pierce in lot four, block two, Skillern’s addition to Pangburn, Arkansas. Appellant enforced a vendor’s lien note, in the sum of $450, which he had purchased, against said property, on the 28th day of February, 1920. After paying the indebtedness and costs, there remained in the hands of the commissioner $265.82.

Prior to the institution of the foreclosure suit, appellant had instituted a suit against J. W. Pierce in the White Circuit Court for $1,500 and obtained a writ of attachment, on the 19th' day of December, 1919, which was levied upon the equity of J. W. Pierce in said real estate on January 1, 1920. Based upon this proceeding, appellant filed an intervention in the foreclosure suit for the surplus remaining in the commissioner’s hands.

Prior to the institution of either suit, • appellee brought an attachment proceeding against J. W. Pierce before a magistrate in said county. A warning order was issued in the proceeding against J. W. Pierce, who was a nonresident, and the attachment was levied by the constable of the township upon personal property 'belonging to the said J. W. Pierce. Pierce made default, the attachment was sustained, and the personal property condemned and sold under an order of court to satisfy appellee’s claim, but only sold for sufficient to pay $173.40 thereon, leaving a balance due appellee of $165.58. On October 28, 1919, after the sale of the personal property, appellee filed another affidavit and procured the issuance of a writ of attachment on October 30,1919, which was levied upon the equity of J. W. Pierce in said real estate on December 1, 1919, without publishing an additional warning order. On the return of the writ showing a levy upon the equity of Pierce in said real estate, the attachment was sustained, a transcript of the judgment sustaining the attachment was lodged in the office of the clerk and entered in the lien record of certified judgments, mechanics ’ liens, etc., but was not docketed on the law docket of the circuit court. Based upon this proceeding, appellee filed an intervention in the foreclosure suit for the surplus aforesaid.

The question of the priority of the judgment-liens was submitted to the court on the interventions of appellant and appellee, together with an agreed statement of facts, in substance heretofore detailed.

The court found that appellee’s attachment lien was paramount to that of appellant and decreed that the surplus, or so much thereof as might be necessary, be applied to the payment of the debt due by J. W. Pierce to appellee. From that decree an appeal has been duly prosecuted to this court.

The issuance and levy of appellee’s attachment upon the equitable interest of J. W. Pierce in said real estate was prior in point of time to that of appellant’s; but it was void for the reason that it was issued and sustained without personal or constructive service upon Pierce. The attachment proceeding in the justice of the peace court by appellee against J. W. Pierce, which was levied upon certain personal property, became a finality with the condemnation and sale of said property. The constructive service obtained in that suit could not be made the basis of service in the subsequent attachment proceeding against the real estate. Writs of attachment can be issued in succession during the pendency of an action and ancillary to it. Additional writs can not be issued and the property seized thereunder condemned without new service, because. such a proceeding is clearly in the nature of a new suit. Otherwise, innumerable seizures and sales of property might be effected without notice, personal or constructive, to defendants in attachment proceedings.

It is contended, however, that no reply was filed to the intervention of appellee. The intervention filed by the respective parties were treated as presenting the issue as to the priority of liens. It is recited in the agreed statement of facts that, “This suit is for the purpose of determining whether the intervener, Tate, is entitled to the surplus aforesaid or whether the Bank of Pangburn is entitled to same.” Parties can not treat ■an issue as joined by the pleadings, and, after trying it ■out, raise the question for the first time on appeal that the pleadings did not present the issue tried.

The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.