{
  "id": 8725073,
  "name": "Bank of Eudora v. Ross",
  "name_abbreviation": "Bank of Eudora v. Ross",
  "decision_date": "1925-05-04",
  "docket_number": "",
  "first_page": "754",
  "last_page": "756",
  "citations": [
    {
      "type": "official",
      "cite": "168 Ark. 754"
    }
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "cite": "115 Ark. 216",
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      "cite": "70 Ark. 128",
      "category": "reporters:state",
      "reporter": "Ark.",
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    {
      "cite": "162 Ark. 16",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1385518
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      "case_paths": [
        "/ark/162/0016-01"
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    {
      "cite": "162 Ark. 243",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1385523
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  "last_updated": "2023-07-14T17:11:28.689459+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Bank of Eudora v. Ross."
    ],
    "opinions": [
      {
        "text": "McCulloch, C. J.\nT. E. Ray conveyed certain lands in Chicot County to S. A. Wilson by warranty deed, which recited notes executed by Wilson to Ray for unpaid purchase money. These notes were assigned by Ray to appellant, and Wilson subsequently conveyed the land to appellee Ross and one Van Ness, the grantees expressly assuming payment of said purchase money notes. The notes were not paid, and appellant instituted this action against Van Ness and appellee Ross to recover the amount of the notes and to enforce the vendor\u2019s lien. At the commencement of the action appellant filed allegations and interrogatories to the Monroe County Bank and the First National Bank of Fort Smith, respectively, as garnishees, and writs of garnishment were duly issued and served, and each of the garnishees reported that it had funds in its hands belonging to appellee Ross. Ross appeared by attorneys and filed an answer on the merits, denying the allegations of the complaint with respect to his having assumed the payment of the notes held by appellant, and also filed a motion to quash the garnishments. The court sustained the motion and dismissed the garnishments, and an appeal has been prosecuted to this court.\nThe effect of the dismissal of the garnishments was to end the proceedings as to those parties, and was a final order, and appealable. Helton v. Howe, 162 Ark. 243.\nAppellee relies on the rule in some jurisdictions, and the one said to prevail generally in the absence of statute, that a personal judgment should not be rendered in a suit to foreclose a mortgage or other lien except for the deficiency after the report of the sale of the property showing that the amount realized from the sale was not suffici\u00e9nt to pay the debt. Cases in support of that contention are cited in the brief of counsel. Conceding that such is the general rule, it is changed by the statutes of this State. Crawford & Moses\u2019 Digest, \u00a7\u00a7 6240, 6242, 6244. The first section mentioned above provides that it. shall not be necessary in such proceeding to enter an interlocutory judgment, \u201cbut final judgment may in such cases be given in the first instance. \u2019 \u2019 Section 6242 reads as follows: \u201cIn an action on a mortgage or lien, the judgment may be rendered for the sale of the property and for the recovery of the debt against the defendant personally.\u201d Section 6244 provides that, if the mortgaged property \u201cdoes not sell for a sum sufficient to satisfy the amount due, an execution may be issued against the defendant, as on ordinary judgments.\u201d The purpose of the latter provision was to continue the right to have process as to any deficiency, but it does not bar any other available remedy.\nIn the recent case of McCormick v. Daggett, 162 Ark. 16, we recognized the right of the plaintiff in a lien foreclosure to have personal judgment in the first instance. There is no reason why this should not be so, for the remedies are not inconsistent. A plaintiff is entitled to only one satisfaction, but he is entitled to pursue all available concurrent remedies not inconsistent with each other. There is no reason for holding that the plaintiff in a foreclosure suit is not entitled to ancillary remedies, such as attachment and garnishment. The statutes conferring these remedies are each emphatic, and contain no exceptions. The garnishment statute (\u00a7 4906) in express language extends the remedy to \u201call cases where any plaintiff may begin an action in any court of record.\u201d\nThere is no principle of equity which requires the holder of a security to exhaust his security before resorting to other remedies for the enforcement of personal liability of the debtor. Final judgment should not be rendered against the garnishee and in favor of the plaintiff until the latter\u2019s right to recover from the defendant is established. Norman v. Poole, 70 Ark. 128; St. L. I. M. & S. Ry. Co. v. McDermitt, 91 Ark. 112; Smith v. Spinenwebber, 114 Ark. 384; Smith v. Bank of Higden, 115 Ark. 216. But the garnishee is held bound from the time of the service of the writ, and this remedy is available in a foreclosure proceeding as well as in any other action for debt.\nThe decree of the chancery court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.",
        "type": "majority",
        "author": "McCulloch, C. J."
      }
    ],
    "attorneys": [
      "W. W. Grubbs, for appellant.",
      "Cook \u00e9 Trice, for appellee."
    ],
    "corrections": "",
    "head_matter": "Bank of Eudora v. Ross.\nOpinion delivered May 4, 1925.\n1. Appeal and error \u2014 order dismissing garnishment final. \u2014 An order dismissing writs of garnishment terminatss the proceedings as to the garnishees and is final and .appealable.\n2. Vendor and purchaser \u2014 lien\u2014right to personal judgment. \u2014 A vendor foreclosing his lien for the purchase money is entitled to personal judgment against the .purchaser in the first instance and not merely after report of sale, and may have an ancillary remedy, such, as garnishment, without waiting to exhaust his security.\n3. Garnishment \u2014 liability,of garnishee. \u2014 Final judgment should not be rendered against a garnishee until plaintiff\u2019s right to recover from the defendant is established.\nAppeal from Chicot Chancery Court; E. G. Hammock; Chancellor;\nreversed.\nW. W. Grubbs, for appellant.\nCook \u00e9 Trice, for appellee."
  },
  "file_name": "0754-01",
  "first_page_order": 772,
  "last_page_order": 774
}