Arkadelphia Lumber Co. v. McNutt

Battle, J. Appellees fail to show in their complaint any cause of action against the appellant. They show that appellee, S. R. McNutt, had acquired a lien on the planer, the property attached, prior to that claimed -by . the appellant. ' The planer was seized by the sheriff under the order of attachment in favor of McNutt, and was in the possession of that officer before the constable undertook to levy upon it under the order in favor of the Arkadelphia Lumber Company. This being true, the lien acquired by McNutt was prior and superior to any that could have been claimed by the lumber company. Derrick v. Cole, 60 Ark. 394. The fact that the debt the appellant sought to recover by his action was for the purchase money for which the planer sold did not create a lien. It only excepts it from exemption from seizure and sale under an execution in favor of the vendor or his assigns upon a. judgment for the purchase money, and enables the vendor or assigns in a suit for the purchase money to seize the planer at once, if in the control of the vendee, without alleging the ordinary grounds for an attachment. Bridgeford v. Adams, 45 Ark. 136. The action instituted for the purchase money, the issue of an order under section 4728 of Sandels & Hill’s Digest, and seizure under such order do not give to a lien thereby acquired precedence over that created by the levy of an order of attachment prior in time to such seizure. The lien in the action for the purchase money is subject to that of the order of attachment. Swanger v. Godwin, 49 Ark. 290; Fox v. Arkansas Industrial Company, 52 Ark. 450. Appellees fail to show any canse of action in favor of any of them. All they allege as to any of the co-appellees of McNutt is as follows: “That after said levy was made (that is, the levy of the order of attachment in favor of McNutt) the plaintiffs, J. C. Wallis, Dave Graves, and J. M. Gordon, each having instituted suits in justice-of-the-peace courts against said Edgarton, caused said suits to be transferred to said court of common pleas, where by proper orders said causes were consolidated with the case of S. R. McNutt versus H. J. Edgarton, and thereafter prosecuted under the name and style of S. R. McNutt et al. versus H. J. Edgarton.” The co-appellees do not show a cause of action against any one — simply show that they instituted suits. No one has a right to complain of a lien which does not injuriously affect him. He has no right to constitute himself guardian of another, and interpose a defense in an action against such person, or have a judgment in such action set aside “on the ground that the defendant had defenses which he might have asserted, or that, in the transaction between the plaintiff and the defendant out of which the judgment grew, the former overreached the latter.” Unless he is injuriously affected, he has no right to institute an action to set aside a lien, sale or judgment. Glaser v. First National Bank, 62 Ark. 175. In the case before us the appellees did not show that they were affected by any lien claimed by the appellant. The demurrer to their complaint should have been sustained. The judgment of the circuit court is therefore reversed, and the cause is remanded, with instructions to the court to sustain the demurrer, and allow the appellees to amend their complaint, so as to show a cause of action, if they can, and so desire. Wood, J., dissents.