National Surety Co. v. Bertig Bros.

WOOD, J., (after stating the facts). The undisputed evidence in the record is that after judgment was rendered by default against the Circle, as garnishee, adjudging that it had in its hands the sum of $500 that was due W. C. Pigue, Pigue filed a schedule before the clerk of the circuit court, claiming the amount thus adjudged in the hands of the garnishee as exempt. The schedule was allowed by the clerk, and the appellees here appealed from that allowance to the circuit court and the circuit court affirmed the action of the clerk, and no appeal was taken by Bertig Brothers from this judgment of the circuit court: Thereafter, on the 5th of September, appellees filed this suit, alleging that the paying of the money by the Circle to W. C. Pigue was a breach of its bond. Passing by the other interesting questions, it is only necessary to consider this one, for it settles the issue in favor of the appellant. The court declared the law to be that, “by the service of the writ of garnishment the plaintiff fixed a lien upon the indebtedness of the garnishee to the defendant, and no subsequent payment of the indebtedness to the defendant could destroy the lien or affect the right of the plaintiff.” This was error. In the case of Blass v. Erber, 65 Ark. 112, we held (quoting syllabus): “Funds in the hands of a garnishee may be claimed as exempt by the debtor after judgment has been rendered against the garnishee fixing the funds in his hands.” Citing Robinson v. Swearingen, 55, Ark. 55. These cases rule the present one. Appellees predicated their cause of action upon these facts, that the Circle disregarded the writs of garnishment, and without any order of the court out of which the garnishments issued paid to Pigue the sum of $500. They contend that by so doing the Circle breached its bond to the State of Arkansas, and that by reason of such breach the appellant, as the surety of the Circle, became liable. But since it was adjudged that the $500 was an exemption in favor of Pigue, the judgment debtor, under the schedule filed by him it was wholly immaterial, under the above authorities, so far as the rights of appellant are concerned, whether the money was paid by the Circle with or without the orders of the court. It was paid to the one entitled to it, and, according to the above cases, it could not be subjected to the payment of appellees’ debt, and the court erred in holding to the contrary. The judgment is therefore reversed and appellees’ cause of action is dismissed.