Faulkner v. Cook

Riddick, J., B. W. Cook brought an action in the circuit court of Union County against S. D. Thompson on two promissory notes amounting with interest to $586.' He sued out a writ of attachment, and levied the same upon a stock of shoes. These shoes were claimed by R. A. Faulkner and others, who gave a retaining bond as provided by sections 425 to 429, Kirby’s Digest, conditioned that they would interplead for the property attached. This bond is not exactly in the statutory form, though the difference is slight and not material here. The defendant Thompson made no defense, and judgment was rendered against him for the amount of the debt. On the trial of the issue raised by the interplea the evidence was conflicting. The court gave an oral charge to the jury covering the different points in the case, which charge was not excepted to. The interveners thereupon asked him to instruct the jury in substance that if the plaintiff had purchased an interest in the stock of goods attached or the proceeds thereof in satisfaction of his debt he could not recover in this action. The court, we think, properly refused to give this instruction for the reason that there was ño such issue raised by the interplea. The plaintiff had already recovered judgment for the amount of the debt, and the attachment had been sustained. The only question remaining was whether the goods levied upon belonged to the interveners or the defendant. If they belonged to the defendant, .plaintiff had the right, to subject them to the payment of his judgment against defendant, and the interveners could not in this proceeding raise the question as to whether the debt had been paid or not. 4 Cyc. 740. The jury returned the following verdict: “We, the jury, find for the plaintiff in the sum of $586.” This verdict, so far as it finds for the plaintiff, is responsive to the issues submitted to the jury, but the latter part of it, stating the amount, is not responsive, and must be rejected as surplusage. Counsel for plaintiff contends that the jury simply assessed the value of the goods in controversy which had been retained by the interveners. But the statute regulating the trial of such interpleas does not contemplate an assessment of the value of the goods by the jury. It provides that this value shall be ascertained by appraisement at the time the retaining bond is executed by the interveners. Kirby’s Digest, § 425. No such question as the value of the property was submitted to the jury in this case, and the amount stated in the verdict does not purport to be an assessment of the value of the property. It purports to be a finding in favor of plaintiff for a certain sum. The sum named is the exact amount of the plaintiff’s debt which the jury had ascertained during the trial in some way, and which they inserted in their verdict. This addition to the verdict does not invalidate it, for, as before stated, it may be rejected as surplusage. But there was no appraisement of the goods attached in this case as provided by the statute, and for that reason there was no basis for the judgment rendered against the defendants. In fact, as pointed out in the case of Turner v. Collier, 37 Ark. 528, the bond of the interveners does .not become forfeited until after the issue of an execution on the original judgment. If the interveners fail to surrender the property to the sheriff holding such execution, it is the duty of the sheriff .to show such fact in his return of the execution. The bond then becomes forfeited, and has the force and effect of a judgment for the appraised value of such property, and costs. This may be an awkward and cumbersome method to be followed, but the practice is settled by the statute and the former decisions of this court. As the property was not appraised, the remedy of plaintiff .is by an action on the bond. Turner v. Collier, 37 Ark. 532. The judgment against the interveners and their bondsmen for the sum of $586. will be reversed, but the judgment in favor of plaintiff on the trial of the interplea that the goods belonged to defendant Thompson will be affirmed. It is so ordered.