Samuelson v. Patterson & Co.

Hart, J., (after stating the facts). No exceptions were saved to the giving of instructions by the trial court, and no reversal of the judgment is asked here on that account. A reversal of the judgment is first asked on the ground that the evidence did not warrant a judgment against Samuelson, the garnishee. The evidence shows that the garnishment was issued on the 23rd day of December, 1919. It also shows that Samuelson was indebted to Keys at that time in the sum of $585, the balance of the purchase money of 80 acres of land. It is the contention of counsel for Samuelson that he had only an option to purchase the land and had the right to elect not to pay the balance of the agreed price and thereby forfeit his right to purchase the land. Under the facts disclosed by the record the jury might have found that Samuelson, Keys, and Richardson entered into a scheme to defeat Patterson & Company in the collection of their debt against Keys by the garnishment proceedings against Samuelson. Samuelson had bought the land from Keys for $900 and had already paid $315. According’ to his own testimony, under the advice of the banker he only refrained from paying into the bank tbe $585 until after tbe garnishment proceedings were determined. He said that be intended to pay tbe $585 later and get bis deed to tbe land. This is exactly what be did do. On tbe 2nd day of January, 1920, Keys took tbe deed out of tbe bank and then sold tbe land to Tom Richardson for $585, which be owed him and which was tbe exact amount that Samuelson owed as a balance of tbe purchase money. Indeed, Keys bad already given Richardson a check for tbe $585 which be expected Samuelson to deposit in tbe bank for tbe balance of tbe purchase money on the land. Under tbe circumstances tbe jury was justified in finding that tbe taking of the deed back by Keys and bis subsequent conveyance to Richardson and tbe conveyance by Richardson in turn to Samuelson for $585, tbe balance due on tbe purchase money, was a scheme to defeat Patterson & Company in tbe collection of their debt- by tbe garnishment proceedings. Hence it cannot be said that tbe evidence was not legally sufficient to support a verdict in favor of tbe plaintiffs. Again it is contended that tbe judgment must be reversed because tbe court could not render a judgment against tbe garnishee until judgment bad been rendered against tbe defendant in tbe main action. St. L. I. M. & S. R. Co. v. McDermitt, 91 Ark. 112, and Smith v. Bank of Higden, 115 Ark. 216. Tbe record does not bear out tbe contention of counsel. It shows that judgment was rendered in favor of tbe plaintiffs, Patterson & Company, against tbe defendant, John Keys, in tbe justice court on tbe 31st of March, 1920, and that no appeal was taken to tbe circuit court. Tbe only appeal prosecuted to tbe circuit court was that of tbe garnishee from tbe judgment rendered against him. It follows that the judgment must be affirmed.