Arnold v. McLellan

1910 OK 305, 112 P. 1018, 27 Okla. 598, 1910 Okla. LEXIS 265

• Court: Supreme Court of Oklahoma
• Decided: November 16, 1910
• Docket: 618
• Status: Published

Opinion

WILLIAMS, J.

Under section 339 (sec. 317, Mansf. Dig. Ark. 1884), Ind. Ter. St. 1899, it is settled that only in suits by attachment may a writ of garnishment be issued before judgment against the defendant. Leingardt v. Deitz, 30 Ark. 224; Littlejohn v. Lewis, 32 Ark. 423. Conseequently not only the'affidavit, but also the bond, was essential. Section 340 (sec. 318, Mansf. Dig. Ark. 1884), Ind. Ter. St. 1899; section 332 (sec. 310, Mansf, Dig. Ark. 1884), Ind. Ter. St. 1899; section 334 (sec. 312, Mansf. Dig. Ark. 1884), Ind. Ter. St. 1899.

The failure to make such affidavit and bond and file the same is fatal on timely objection. Fletcher v. Mankin, 37 Ark. 206.

On the erection of the state, said cause was transferred to the state district court, where both equity and law were administered from the same docket. Plaintiff having refused to introduce evidence to support or meet the issues, and the evidence on the part of the defendant not being brought up as a part of the record, we cannot say .that any error was committed to the prejudice of plaintiff in error. For if fraud was committed by plaintiff in error in procuring the execution of the contract, no relief in equity could have been afforded him.

Neither has any appearance been made in this court on the part of the defendant in error, nor any briefs filed. Whilst we Lave carefully searched the record, yet if the judgment here were adverse to defendant in error, having made such default, she would be entitled to no consideration on a petition for rehearing if the contention therein was as to what questions were presented by the record.

The judgment of the lower court is affirmed.

All the Justices concur.