{ "id": 1581921, "name": "Harrison v. Fulk", "name_abbreviation": "Harrison v. Fulk", "decision_date": "1917-03-26", "docket_number": "", "first_page": "229", "last_page": "233", "citations": [ { "type": "official", "cite": "128 Ark. 229" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "95 Ark. 118", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543587 ], "weight": 2, "pin_cites": [ { "page": "214" } ], "opinion_index": -1, "case_paths": [ "/ark/95/0118-01" ] }, { "cite": "94 Ark. 214", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545420 ], "opinion_index": -1, "case_paths": [ "/ark/94/0214-01" ] }, { "cite": "99 N. E. 606", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": -1 }, { "cite": "35 Ark. 298", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873872 ], "weight": 3, "pin_cites": [ { "page": "350" }, { "page": "302" } ], "opinion_index": -1, "case_paths": [ "/ark/35/0298-01" ] }, { "cite": "101 Ark. 29", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311097 ], "opinion_index": 0, "case_paths": [ "/ark/101/0029-01" ] }, { "cite": "62 Ark. 135", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1905646 ], "opinion_index": 0, "case_paths": [ "/ark/62/0135-01" ] }, { "cite": "61 Ark. 33", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902373 ], "opinion_index": 0, "case_paths": [ "/ark/61/0033-01" ] }, { "cite": "63 Ark. 540", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724410 ], "opinion_index": 0, "case_paths": [ "/ark/63/0540-01" ] }, { "cite": "55 Ark. 329", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1322288 ], "opinion_index": 0, "case_paths": [ "/ark/55/0329-01" ] }, { "cite": "55 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1322215 ], "opinion_index": 0, "case_paths": [ "/ark/55/0622-01" ] }, { "cite": "51 Ark. 382", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "37 Ark. 614", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871000 ], "opinion_index": 0, "case_paths": [ "/ark/37/0614-01" ] }, { "cite": "34 Ark. 710", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "103 Ark. 191", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1351942 ], "opinion_index": 0, "case_paths": [ "/ark/103/0191-01" ] }, { "cite": "45 Ark. 112", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892046 ], "opinion_index": 0, "case_paths": [ "/ark/45/0112-01" ] }, { "cite": "66 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1909831 ], "opinion_index": 0, "case_paths": [ "/ark/66/0175-01" ] }, { "cite": "191 S. W. 2", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "126 Ark. 548", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1551717 ], "opinion_index": 0, "case_paths": [ "/ark/126/0548-01" ] }, { "cite": "94 Ark. 214", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545420 ], "opinion_index": 0, "case_paths": [ "/ark/94/0214-01" ] } ], "analysis": { "cardinality": 414, "char_count": 7685, "ocr_confidence": 0.468, "pagerank": { "raw": 6.673165364325856e-08, "percentile": 0.4061814028539888 }, "sha256": "fc084f23d8dfd89d8f27ec2a81bfb23a35c77f501a3e51184e215dca0f7f92c0", "simhash": "1:85f4649d962c936c", "word_count": 1367 }, "last_updated": "2023-07-14T16:45:50.583775+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Harrison v. Fulk." ], "opinions": [ { "text": "Smith, J.\nThis is a petition for mandamus, directed against the Hon. Guy Fulk, as judge of the second division of the Pulaski circuit court.\nThe case arises out of the proceedings had in that court upon the suing out of the mandate from this court in the case of Nothwang v. Harrison, decided January 1, 1917, and reported in 126 Ark. 548, 191 S. W. 2. As appears from the opinion in that case, Nothwang had attached a lot of shingles belonging to Harrison Bros., and after a mistrial of that cause and pending another trial the court made an order directing the sale of these shingles, and, pursuant thereto, the shingles were sold to Nothwang for $350.00. In due time, and before the first trial of that cause, the defendant in the attachment case filed an answer and cross-complaint, in which the material allegations of the complaint were denied, and a cause of action in their own favor set up, in winch it was alleged that damages in the sum of $719.50 had been sustained. After this sale, the defendants filed an amendment to their cross-complaint, reciting the sale of the shingles, and stating their value, at the time they were attached, to be $742.59, and judgment was thereupon prayed in the sum of $1,462.09, which sum included the alleged value of the shingles and the amount of damages for which judgment had been originally prayed.\nThese questions were gone into at the original trial, and, at the request of the defendants, the court gave an instruction on the measure of damages, in which the jury was told that, \u201cIn this connection, if you find against the plaintiff, and for the defendants, you will ascertain, from the evidence, the value of the shingles attached, at the time attached, and render a verdict for defendants for the amount so found, with interest at 6 per cent, per annum from May 18, 1915 (the date of the attachment). Further, in ascertaining this value, you will not consider, or be guided by, the amount plaintiff paid for said shingles at the sheriff\u2019s sale.\u201d\nA judgment was returned in favor of defendants for the sum of $500 and this judgment was affirmed by us on appeal.\nThe cause was further heard on January 20, 1917, by the court below, on the mandate from this court, at which time defendants prayed the court to render judgment against Nothwang and his sureties in the sum of $500, with interest from date of the judgment appealed from, and, in addition, that the court order the sheriff to pay to them the $350 for which the shingles sold. The court refused to make this order, but on the contrary, directed the sheriff to turn over to defendants the said $350, \u201cto be by them applied on the judgment of $500 secured by them against Nothwang, et al.\u201d Whereupon, this petition for mandamus was filed, to require the court to make the order prayed bqlow.\nThe prayer of this petition must be denied for two reasons. The first is that the petitioners have had their day in coutb on the question of the value of the shingles. They had the right to treat the $350 as representing the value of the shingles, but they were not required to do so. Had they done so, they would have been entitled, under section 380 of Kirby\u2019s Digest, to this money upon the dissolution of the attachment. This section provides that the attached property, or its proceeds, shall be returned to the defendant upon the dissolution of the attachment. Defendants elected, however, to amend their cross-complaint to allege the value of the shingles was not $350, but was $742.59, and that issue has been passed upon by the jury.\n(1) In C. J. Yol. 6, 420, it is said: \u201cWhere plaintiff was totally deprived of his property, the measure of damages is the value of the property taken, at the time of the seizure, with interest from the date of the levy up to the time of trial.\u201d The cases of Perkins v. Ewan, 66 Ark. 175, and Straub v. Wooten, 45 Ark. 112, are there cited to support that statement of the law.\n(2) This rule is in accordance with our statute upon the subject. Section 381 of Kirby\u2019s Digest provides that, in all cases of attachment in which the attachment is discharged, the court or jury trying such attachment shall assess the damages sustained by reason thereof, and judgment shall be rendered against the plaintiff, and his sureties in the attachment bond, for the amount of such damages, and the cost of the attachment.\nThe practice under this section has been defined in the following eases: Rogers v. Coates, 103 Ark. 191; Holliday v. Cohn, 34 Ark. 710; Boatwright v. Stewart, 37 Ark. 614; Goodbar v. Lindsley, 51 Ark. 382; Poppewell v. Hill, 55 Ark. 622; Blass v. Lee, 55 Ark. 329; Scanlan v. Guiling, 63 Ark. 540; Norman v. Fife, 61 Ark. 33; Walker v. Fetzer, 62 Ark. 135.\nDefendants might have availed themselves of the benefits of section 380, in which event, upon the dissolution of the attachment, they would have been entitled to the proceeds of the sale of the attached property in the hands of the sheriff. But, as has been said, they had the right to proceed under section 381 of Kirby\u2019s Digest, and have the jury find the value of the property which had been sold, and, having done this, they can not also avail themselves of the provisions of section 380. The positions are inconsistent.\n(3) Moreover, mandamus will not lie, because the action of the court was a judicial, and not a ministerial, one, and, if it be assumed that the court erroneously refused to render judgment for the $350, by directing the payment of the $350 to petitioners, to apply on their judgment, then the error was one to be corrected by appeal, and not by mandamus. Maxey v. Coffin, 94 Ark. 214; Rolfe v. Drainage District, 101 Ark. 29, and cases cited.\nThe petition for mandamus is therefore denied.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Dunaway & Chamberlin, for petitioners.", "John D. Shackelford, for respondent." ], "corrections": "", "head_matter": "Harrison v. Fulk.\nOpinion delivered March 26, 1917.\n1. Attachments\u2014damages for improper seizure.\u2014Where a party is totally deprived of his property by an attachment thereof, the measure of his damage is the value of the property taken, at the time of the seizure, with interest from the date of the levy up to the time of trial.\n2. Attachments\u2014damages\u2014remedy\u2014election.\u2014Where plaintiff\u2019s property has been improperly attached and sold, and the attachment is discharged, plaintiff is entitled to the remedy prescribed in Kirby\u2019s Digest, \u00a7 381, under which the court or jury assesses his damages and judgment shall be given on the attachment bond, or in Kirby\u2019s Digest, \u00a7 380, under which plaintiff may recover the proceeds of the sale in the sheriff\u2019s hands. Plaintiff can avail himself of but one of these remedies, and having elected to act upon one he cannot invoke the dther also.\n3. Mandamus\u2014judicial act\u2014improper remedy.\u2014The failure of a court to render a proper judgment is an error to be corrected by appeal and not by mandamus.\nMandamus to Pulaski Circuit Court, Second Division; Guy Fulk, Judge;\nwrit denied.\nDunaway & Chamberlin, for petitioners.\n1. Mandamus will lie; the duties of the court are merely ministerial.- Kirby\u2019s Digest, \u00a7 380. There is no other adequate remedy. It was the duty of respondent to enter the order directing the sheriff to turn over the $350.00 to petitioners. Kirby\u2019s Digest, \u00a7 380.\n2. This court has jurisdiction to compel an inferior court to exercise his discretion, and perform his duty. 35 Ark. 298; 80 Id. 350; 4 Id. 302; 99 N. E. 606.\n3. Appeal is not the remedy. Kirby\u2019s Digest, \u00a7 380; 94 Ark. 214.\nJohn D. Shackelford, for respondent.\n1. The pleadings in this cause and the conduct of petitioners sustain the order, and it is correct. Their claim is inconsistent.\n2. Mandamus will not lie; the remedy was by appeal. 95 Ark. 118; 94 Id. 214; 77 Id. 101; 80 Id. 61; 82 Id. 483;.84 Id. 156; 98 Id. 505; 101 Id. 29." }, "file_name": "0229-01", "first_page_order": 257, "last_page_order": 261 }