{ "id": 1881104, "name": "Leingardt et al. vs. Deitz", "name_abbreviation": "Leingardt v. Deitz", "decision_date": "1875-11", "docket_number": "", "first_page": "224", "last_page": "230", "citations": [ { "type": "official", "cite": "30 Ark. 224" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "19 Mo., 261", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 315666 ], "opinion_index": -1, "case_paths": [ "/mo/19/0261-01" ] }, { "cite": "21 La., 686", "category": "reporters:state", "reporter": "La.", "opinion_index": -1 }, { "cite": "1 Bland, 530", "category": "reporters:state", "reporter": "Bland", "case_ids": [ 1714903 ], "opinion_index": -1, "case_paths": [ "/bland/1/0530-01" ] }, { "cite": "5 Mich., 225", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1928373 ], "opinion_index": -1, "case_paths": [ "/mich/5/0225-01" ] }, { "cite": "6 Blackf., 577", "category": "reporters:state", "reporter": "Blackf.", "opinion_index": -1 }, { "cite": "7 Minn., 465", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 8875902 ], "opinion_index": -1, "case_paths": [ "/minn/7/0465-01" ] }, { "cite": "14 Ga., 674", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 577710 ], "opinion_index": -1, "case_paths": [ "/ga/14/0674-01" ] }, { "cite": "2 Scam., 224", "category": "reporters:state", "reporter": "Scam.", "opinion_index": -1 }, { "cite": "12 Ga., 526", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 589458 ], "opinion_index": -1, "case_paths": [ "/ga/12/0526-01" ] }, { "cite": "29 Ala., 40", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 11254828 ], "opinion_index": -1, "case_paths": [ "/ala/29/0040-01" ] }, { "cite": "20 Ala., 54", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8496853 ], "opinion_index": -1, "case_paths": [ "/ala/20/0054-01" ] }, { "cite": "5 Ark., 55", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726281 ], "opinion_index": -1, "case_paths": [ "/ark/5/0055-01" ] }, { "cite": "16 Ark., 104", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724152 ], "opinion_index": -1, "case_paths": [ "/ark/16/0104-01" ] }, { "cite": "10 Ark., 316", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "9 Ark., 480", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "6 Ark., 182", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726917 ], "opinion_index": -1, "case_paths": [ "/ark/6/0182-01" ] }, { "cite": "6 Ark., 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726566 ], "opinion_index": -1, "case_paths": [ "/ark/6/0041-01" ] }, { "cite": "5 Ark., 358", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727319 ], "opinion_index": -1, "case_paths": [ "/ark/5/0358-01" ] }, { "cite": "5 Ark., 27", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726095 ], "opinion_index": -1, "case_paths": [ "/ark/5/0027-01" ] }, { "cite": "2 Cranch, 33", "category": "reporters:scotus_early", "reporter": "Cranch,", "case_ids": [ 6757397, 6757389, 1411963, 6757381 ], "opinion_index": -1, "case_paths": [ "/dc/2/0033-03", "/dc/2/0033-02", "/us/6/0015-01", "/dc/2/0033-01" ] }, { "cite": "22 Ark., 369", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726831 ], "opinion_index": -1, "case_paths": [ "/ark/22/0369-01" ] }, { "cite": "4 Ark., 44", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728279 ], "opinion_index": -1, "case_paths": [ "/ark/4/0044-01" ] }, { "cite": "5 Ark., 536", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727732 ], "opinion_index": -1, "case_paths": [ "/ark/5/0536-01" ] }, { "cite": "4 Ark., 410", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728801 ], "opinion_index": -1, "case_paths": [ "/ark/4/0410-01" ] }, { "cite": "9 Ark., 270", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727295 ], "opinion_index": -1, "case_paths": [ "/ark/9/0270-01" ] }, { "cite": "44 Mo., 283", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 950308 ], "opinion_index": -1, "case_paths": [ "/mo/44/0283-01" ] }, { "cite": "15 Mo., 519", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 332472 ], "opinion_index": -1, "case_paths": [ "/mo/15/0519-01" ] }, { "cite": "1 Mo., 147", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8853202 ], "opinion_index": -1, "case_paths": [ "/mo/1/0103-01" ] }, { "cite": "1 Pick., 250", "category": "reporters:state", "reporter": "Pick.", "opinion_index": -1 }, { "cite": "17 Ind., 559", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1454436 ], "opinion_index": -1, "case_paths": [ "/ind/17/0559-01" ] }, { "cite": "5 Ind., 547", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1448372 ], "opinion_index": -1, "case_paths": [ "/ind/5/0547-01" ] }, { "cite": "31 Ala., 227", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8497523 ], "opinion_index": -1, "case_paths": [ "/ala/31/0227-01" ] }, { "cite": "4 Day, 57", "category": "reporters:state", "reporter": "Day", "case_ids": [ 6753291 ], "opinion_index": -1, "case_paths": [ "/day/4/0057-01" ] }, { "cite": "19 Conn., 292", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 6753898 ], "opinion_index": -1, "case_paths": [ "/conn/19/0292-01" ] }, { "cite": "34 Cal., 183", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2284633 ], "opinion_index": -1, "case_paths": [ "/cal/34/0183-01" ] }, { "cite": "6 Cal., 41", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2215502 ], "opinion_index": -1, "case_paths": [ "/cal/6/0041-01" ] }, { "cite": "31 Cal., 122", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2222579 ], "opinion_index": -1, "case_paths": [ "/cal/31/0122-01" ] }, { "cite": "10 Ark., 588", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727954 ], "opinion_index": -1, "case_paths": [ "/ark/10/0588-01" ] }, { "cite": "5 Ark., 214", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726900 ], "opinion_index": -1, "case_paths": [ "/ark/5/0214-01" ] } ], "analysis": { "cardinality": 662, "char_count": 11612, "ocr_confidence": 0.465, "pagerank": { "raw": 3.056566882320558e-07, "percentile": 0.8563107347185106 }, "sha256": "b3520f7a55968a88ee6614b309bbf0b72d193e228edb76dbbcdfc9d6aa00e0d3", "simhash": "1:aa3b1bb52ed061ad", "word_count": 1966 }, "last_updated": "2023-07-14T16:21:05.477348+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Leingardt et al. vs. Deitz." ], "opinions": [ { "text": "Harrison, J.:\nH, Deitz sued A. Liugardt on an account before a justice of the peace, and also, at the commencement of the suit, but without an attachment against the property of the defendant, or filing any bond or affidavit therefor, sued out a writ of garnishment against the Cairo and Fulton Railroad Company.\nThe writ of garnishment was served, and, upon the return day, the company appeared by its attorney and, without any allegations and interrogatories being filed, admitted, as the justice\u2019s docket states, an indebtedness to the defendant sufficient to satisfy whatever judgment might be recovered against him.\nThe summons against the defendant not being served, an alias was issued, and service being had, judgment by default was rendered against him on the 30th day of December, 1873.\nOn the 6th day of January, 1874, judgment was rendered against the Cairo and Fulton Railroad Company, on its admission of indebtedness to defendant.\nBefore the latter judgment was rendered, on the same day, the defendant filed with the justice a schedule of his personal property, claimed as exempt from execution, in which was embraced the company\u2019s indebtedness to him.\nFrom the latter judgment both the company and the defendant appealed to the Circuit Court.\nThe Circuit Court, without a trial as to the facts, on an inspection of the transcript from the justice\u2019s court, affirmed the judgment against the company, and gave judgment against both appellants for the costs in both cases. They then appealed to this court.\nThe writ of garnishment in this case was, evidently, sued out under the supposed authority of section 396 of Gantt\u2019s Digest, which is as follows\n\u201c Whenever, in a civil action, the plaintiff shall have reason to believe that any other person is indebted to the defendant, or has in his hands or possession goods and chattels, moneys, credits and effects belonging to such defendant, the plaintiff may sue out a writ of garnishment, setting forth his cause of action against the defendant, and commanding the officer charged with the execution thereof to' summon the person therein named as garnishee to appear at the return day of the summons in the action, if the writ shall have been issued at the commencement thereof, and, if not so issued, on such day as the court shall designate, to answer what goods, chattels, moneys, credits and effects he may have in his hands or possession belonging to such defendant, and in all such actions, where the plaintiff shall have obtained judgment, he may sue out a writ of garnishment, setting forth such judgment, and shall proceed in the manner herein directed for the enforcement and collection thereof.\u201d\nThough the language of this section is so general as seemingly to authorize the issuance of a writ of garnishment in a suit commenced by ordinary-process, or any civil action, the context and subject to which it relates plainly show that such was not the intention of the Legislature, and that such writ can be had before judgment is obtained in cases of attachment only.\nThe section quoted is part of section 224 of the Code of Civil Practice, as amended by the act of the Legislature, passed March 27th, 1871. That act commences thus:\n\u201c Be it enacted by tbe General Assembly of the State of Arkansas, That the act entitled Code of Practice in Civil Cases in Arkansas, approved July 22d, 1868, be and the same is hereby re-enacted, and the following enumerated sections of the said act are hereby so amended as to read as follows.\u201d\nThe immediate context of said amended section is as follows :\n\u201c Chapter III \u2014 Attachment.\n\u201c Article T \u2014 General Attachment.\n\u201cSubdivision 11. How an attachment is obtained.\n\u201c Section 217 (amended 1871). In an action to recover money, clerk to grant attachment upon affidavit. Nature of affidavit.\n\u201c An order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in the first subdivision of section two hundred and sixteen, when there is filed in his office an affidavit of the plaintiff, or of some one in his behalf, showing\u2014\nFirst \u2014 The nature of the plaintiff\u2019s claim.\n8econd \u2014 That it is just.\nThird \u2014 The amount which tbe affiant believes the plaintiff ought to recover; and\nFourth \u2014 The existence in the action of some one of the grounds for an attachment enumerated in the subdivision, and in the case mentioned in the subdivision of section two hundred and sixteen, where it is shown by such affidavit, or by the return of the sheriff, or other officer, upon the order for the delivery of the property claimed, that the facts mentioned in that subdivision exist.\u201d\nIt is thus numbered and denoted :\n\u201cSec. 224 (amended 1871). Plaintiff may have attachment against garnishee,\u201d and the remaining part of it, which is the same as section 337, in Gantt\u2019s Digest, is as follows :\n\u201cThe plaintiff in all cases of garnishment may also have an attachment against the property of a garnishee who is made a defendant thereto, by stating in his affidavit some one or more of the grounds of attachment mentioned in this chapter, and the amount which the garnishee is indebted to the principal debtor, and executing bond to said garnishee.\u201d\nBefore it was amended the section read as follows:\n\u201cSection 224. The plaintiff in a civil action may have an attachment against the property of a garnishee, who is made a defendant thereto, by stating in his affidavit some one or more of the grounds of attachment mentioned in this chapter, and the amount which the garnishee is indebted to the principal debtor, and executing bond to said garnishee.\u201d\nFrom this examination of the statute it clearly -appears that the Justice of the Peace had no authority to issue the writ of garnishment in the case, the same not being a suit by attachment, and, as his is an inferior court and of limited jurisdiction, it follows that the entire proceedings against the Cairo and Fulton Railroad Company were null and void, and ought to have been set aside and quashed by the Circuit Court. Its judgment is therefore reversed, and the cause is remanded to it, with instructions to quash the said judgment and proceedings of the Justice of the Peace against said Cairo and Fulton Railroad Company.", "type": "majority", "author": "Harrison, J.:" } ], "attorneys": [ "W. H. Winfield, for appellant.", "R. A. Watkins, for appellee." ], "corrections": "", "head_matter": "Leingardt et al. vs. Deitz.\nGarnishment, Judicial: Cannot issue before judgment against the defendant.\nSection 396, of Gould\u2019s Digest, relating to judicial garnishment, does not authorize the issuance of the writ before judgment against the defendant, and a judgment against the garnishee in such a case reversed, though he answered admitting indebtedness.\nAPPEAL from Pulaski Circuit Court.\nHon. J. J. Clendenin, Circuit Judge.\nW. H. Winfield, for appellant.\nThe Circuit Court erred in rendering judgment de novo against \u2022 defendant, where there had been no appeal from the judgment by default below. Gantt\u2019s Digest, 3820.\nNo garnishment could issue againfet the R. R. except as incident to an attachment, or after judgment. Gantt\u2019s Digest, 2991;. 5 Ark., 214.\nThe act of 1871 (see Gantt\u2019s Digest, sections 396, 397) is part, of the attachment law, and its provisions only apply in such cases, otherwise garnishments issue only on judgments. See Gantt\u2019s Digest, 2991 to 3002 inclusive. Pulaski Comity v. Power,. 10 Ark., 588.\nSection 23, in Constitution of 1868, concerning alteration and revision of laws cited and commented on, also on the construction of the sections, 396 and 397. McMinn v. Bliss, 31 Cal., 122; Merrill v. Gorham, 6 Cal., 41; People v. White, 34 Cal., 183; Ransom v. State, 19 Conn., 292; Rogers v. Hurd, 4 Day, 57; Brooks v. MobileS. Commissioners, 31 Ala., 227; Mayor v. Weems, 5 Ind., 547; Allison v. Hubbell, 17 Ind., 559; Holbrook v. lioibrook et al., 1 Pick., 250; Inhabitants of Menci\u00f3n ,v. County of Worcester, 10 Pickering, 235; 6 Cushing, 384; Reddick v. Governor, 1 Mo., 147; Reddick x. Walsh,15 Mo., 519; Statex. King, 44 Mo., 283; State x. Scott, 9 Ark., 270; McFarland, x. State Bank, 4 Ark., 410; Buckner x. Real Estate Bcmk, 5 Ark., 536; Wilson x. Biseoe, 4 Ark., 44; Scott x. State, 22 Ark., 369; Fennington x. Coxe, 2 Cranch, 33; Ayden x. Strong, 2 Pains., 584.\nA statute applicable to particular actions cannot be applied by construction to another action standing in the same reason. Fourth Circ. (Ya.), 1821; Jacob x. N. S., 1 Brock. Marsh., 520.\nThe proceeding in rendering judgment by the justice against the road, without summons, process or appearance, was void as without authority. Reevex. Clark, 5 Ark., 27; Anthony exparte, 5 Ark., 358; Pendleton x. Fowler, 6 Ark., 41; Levy x. Shurman, 6 Ark., 182; Everett x. Clements, 9 Ark., 480; Butler x. Wilson, 10 Ark., 316 ; Booth x. Estes, 16 Ark., 104. He must be made defendant and have his day in court. GantPs Digest, - section 423; Drake on Attachment, sections 452, 454; Thorn x. Wood-ruff, 5 Ark., 55; Wolf x. Tappan, 5 Dana, p. 361.\nCounsel argued at length upon the Constitution and laws affecting exemptions, that choses in action might be scheduled, and claimed as a part of the personal property, and would then be released from garnishment against the debtor, citing (together with authorities supra) Tyson x. Tostleioaite, 13 111., 728; Wallace x. Martin, 17 B. Monroe, 191; Thompson x. State, 20 Ala., 54; Haydon\u2019s case, 3 Eep., 8; Huffman x. State, 29 Ala., 40; Torrance x. McDougal, 12 Ga., 526; Mason x. Finch, 2 Scam., 224; McDougal x. Dougherty, 14 Ga., 674; Tuttle x. State, 7 Minn., 465, and others explanatory of the case of Gegory v. Evcms, in which it was held in Missouri that wages were not property.\n\u201cPersonal property\u201d is defined by section 5629, of Gantt\u2019s Digest, and'includes things in action and evidences of debt.\nR. A. Watkins, for appellee.\nWhere one defendant appeals, the Circuit Court may try the whole case de novo. Gantt\u2019s Digest, sec. 3825. Relied upon sec. 224 of the Code, amended in 1871, for authority to issue garnishment before judgment. Gantt\u2019s Digest, sec. 396.\nThe language is plain, unambiguous and comprehensive, embracing all civil actions. The language is to be taken in its common acceptation, and with its legally ascertained meaning. The court cannot consider the propriety or policy of the act, but there is nothing monstrous in the provision.\nThe act was unnecessary to authorize garnishments in attachment cases. That right existed before.\nThere is no such class of actions as \u201c suits by attachment.\u201d Sec. 1, C. C. P. Attachment is a provisional remedy, auxiliary to a civil action. Sec. 216, C. C. P. See also sec. 58.\nThe location of the provision with the subject matter of attachment cannot alter its plain provisions.\nThe proceedings before the justice were regular; the appellants had notice, and were parties to the suit and had appealed.\nA court of law cannot compel obedience, by a garnishee who answers, in any other way than by order to pay the fund into court, and by judgment in case of failure.\nOn exemption cited. Sec. 1, art. 11, Const, of 1868; sec,. 2635, et seq. Gantt\u2019s Digest. A chose in action not subject to sale, and therefore not exempt. 3d Sand., 692; 6 Geo., 550; 6 Blackf., 577; 5 Mich., 225; Wright (Ohio) 455; Miles (Pa.) 130; llWis., 176; 1 Bland, 530; 23 Texas, 508. Exemption laws strictly construed. 21 La., 686. \u201c Personal property \u201d not choses in action. 19 Mo., 261; Bankrupt Register, August 1st, 1868, p. 19 ; 7 Giles U. S. District Court Maryland.\nNo execution or process against Lingard had been issued when the schedule was filed, and the payment of the debt by the railroad company to Lingard, against the order of the court, rendered them liable to plaintiff, independently of any exemption." }, "file_name": "0224-01", "first_page_order": 224, "last_page_order": 230 }