American National Bank v. Douglas

Wood, J., (after stating the facts). In Lewis v. Faul, 29 Ark. 407 this court, speaking of the remedy by attachment and garnishment, said: “It is at best an extraordinary and harsh remedy, in derogation of the common law, depending upon positive legislation for its existence, and he who invokes it must follow the law at least in substance.” And in Giles v. Hicks, 45 Ark. 271, 276, we said: “Garnishment is a purely statutory proceeding which can not be pushed beyond the authority of the statute.” Our attention has not been directed to any statute, and we know of none, that authorizes the garnishee to hold funds in his hands belonging to the defendant in the action after judgment had been rendered dismissing the cause of action against the defendant and discharging the writ of garnishment. The effect of a' judgment dismissing the cause of action against the defendant and discharging the writ of garnishment was to place the garnishee bank and the defendant district in the same relation that they sustained to each other before the writ of garnishment was served upon the bank. The bank, according to the undisputed proof, before the writ of garnishment was served, held the funds of the district as a general deposit, subject to the check of the district. Inasmuch, therefore, as it appears that no appeal had actually been taken from the judgment of the district court dismissing the writ of garnishment at the time the cheek of the district was presented to the bank for payment, the bank had no right to refuse such payment. Of course, if an appeal had been actually taken from the judgment dismissing the writ of garnishment, or if a supersedeas bond had been given, then the bank would have been justified in refusing to cash the check, under the doctrine announced by this court in Harrison v. Trader, 29 Ark. 85. In that case, speaking of a lien by attachment, this court, quoting from Mr. Drake, on Attachments, said: “The dissolution of an attachment necessarily discharges from its lien the effects or credits on which it may have been executed, whether reduced to possession by the officer, or subjected in the hands of garnishees. When dissolved, the defendant is entitled to a return of the property on demand, unless the judgment of dissolution be suspended by writ of error or appeal. This, it is said, takes away the defendant’s right to demand the property, and the officer, if he have notice of the writ of error or appeal, would not be justified in returning the property.” And, further: “Our statute extends only to supersedeas of executions, all other features of the court’s action are suspended by an appeal or writ of error; and if the cause is reversed, the rights of parties stand as though no action had ever taken place in the inferior court.” But the facts disclosed by this record are that at the time the district made demand on the bank for the payment of its check, there was no appeal actually pending from the judgment dismissing the writ of garnishment; neither had there been any supersedeas bond filed, or any order of the district court suspending or superseding the effect of the judgment dismissing the writs of attachment and garnishment. On the contrary, the record here shows that the district court in which the judgment was rendered expressly refused to grant the plaintiffs in the action time in which to present a supersedeas bond. True, the testimony showed that at the time the district presented its check to the bank, the latter had been notified that an appeal would be taken immediately from the judgment dismissing the writ of garnishment, and that same would be perfected and a supersedeas bond given for the purpose of holding the funds in statu quo. But this testimony only shows that an appeal had not in fact been taken, but was only contemplated, and that no supersedeas bond had been filed, and that, in fact, no order of the district court had been made suspending or superseding the judgment dismissing the writs of attachment and garnishment. It thus appears that at the time the district presented its check to the bank for payment, the bank occupied precisely the same relation to the district as it did before the writs were served.- In the absence of a statute prescribing that where a judgment had been entered dismissing a writ of garnishment and discharging the garnishee that the garnishee may retain possession of the property of the defendant during the time allowed for an appeal, or until a reasonable time within that period has elapsed for the perfecting of the appeal or filing a supersedeas bond, the garnishee would have no authority under the law, and therefore no right, to deprive the defendant of the possession of his property. In Sherrod, Clerk, v. Davis, Sheriff, 17 Ala. 312, it is said: “But after the judgment of the court is final and complete in favor of the defendant, unless it is superseded by writ of error or appeal, the right of the defendant to have the property restored to him is unquestionable, and it is therefore the duty of the. sheriff on demand to deliver it to him.” See, also, 6 C. J., section 1091, note 83, and other cases there cited. The necessary consequence of the judgment in favor, of the district - dismissing the cause of action against it and discharging the bank from the writs of attachment and garnishment was to restore to the district the right to cheek out the funds deposited by it with the bank, and it follows from what we have said that simple notice to the bank that an appeal would be immediately prosecuted and supersedeas bond filed would not justify tbe bank in refusing to pay over tbe money to the district. The judgment of the circuit court so holding is therefore correct, and it is affirmed.