Walker v. Fetzer

Wood, J., (after stating the facts). The amended complaint showed no cause of action against appellants on the bond. The statute giving to the owner of any male animal kept for the propagation of species a lien upon the female animal which has been served by the male, for the sum contracted for such service, nowhere provides for the filing of a bond as a prerequisite for the enforcement of such lien. On the contrary, where the owner files with a justice a written statement, duly verified, setting forth the amount of his claim, his cause of action, and a description of the animal upon which he has a lien, it is the duty of the justice to issue an order to the constable to take the animal and hold it subject to the order of the court, without requiring the filing of a bond. Sand. & H. Dig. secs. 4811-12. The bond was unauthorized, without consideration, and void. The judgment of the court against appellants on this bond was coram non judice, and void. Williams v. Skipwith, 34 Ark. 529. It is not contended, and is nowhere shown, that appellant Edwards had anything to do with taking the mare from appellee, except the mere signing the attachment bond. As to him therefore the judgment is reversed, and the cause dismissed. As to appellant Walker, although somewhat loosely and defectively stated, the allegations of the amended complaint, if sustained by the proof, would justify a verdict and judgment against him as for a trespass or tort. In other words, the complaint shows that upon the application of Walker a writ of attachment was issued by the justice, under which appellee’s mare was seized and taken from his possession, and afterwards, by order of the court, sold, and alleges that said mare was worth seventy-five dollars, and that appellee was damaged in the loss of the use of his mare, and in expense incurred in defending the attachment, in the sum of twenty-five dollars, and that his whole damage was one hundred dollars. There was evidence to support the verdict. The jury might have found from the testimony of appellee that the mare, at the time she was taken from him, was worth seventy-five dollars. The mare was sold under the attachment proceedings for forty dollars and fifty cents. The appellee got the benefit of this amount in a credit on his mortgage, and in satisfaction of a judgment against him. It was near sixteen months from the time the mare was taken from appellee till the rendition of the judgment in this case in the lower court. It was in evidence that the use of the mare was worth four or five dollars per month to appellee. Subtracting the forty dollars and fifty cents which the mare brought at the sale, from the seventy-five which the jury might have found her to be worth, leaves thirty-four dollars and fifty cents, and the interest which the jury might have given appellee would more than make the difference between this and the thirty-six dollars, the amount of their verdict. pef®0t3®|^’ rttacfment. The fact that appellee was present at the sale, and consented that the residue of the amount for which the mare sold, after the satisfaction of the judgment and cost against him., should be applied on a mortgage to his creditor, did not estop him from maintaining this suit against appellant Walker for damages caused by him in the illegal seizure and sale of the máre. The title of the purchaser at the sale under the attachment was in no manner brought in question by this proceeding. The court therefore was correct in refusing an instruction which told the jury, in substance, that, if they found the above to be the fact, they should find for the defendants. Other questions were raised in the motion for new trial, but have not been insisted upon here, and it is unnecessary to discuss them. The proof justified the jury in concluding that appellee’s mare was taken and sold under an illegal attachment sued out by appellant Walker. Therefore the judgment as to him is affirmed.