Mewes v. Home Bank

201 S.W. 1106, 133 Ark. 144, 1918 Ark. LEXIS 200

• Court: Supreme Court of Arkansas
• Decided: March 11, 1918
• Status: Published

Opinion

WOOD, J.,

(after stating the facts). The purpose of this suit was not to litigate and determine any issue of title, as, between the appellee bank, and the appellants, the widow and heirs of J. J. Mewes, to the funds’on deposit with the appellee to the credit of M. J. F. Mewes. It clearly appears from the pleadings and the evidence that the only issue to be litigated and determined, involving the title and right to the funds in controversy, was between the appellants and M. J. F. Mewes.

The purpose of this suit was accurately stated in our former opinion, as follows: ‘ ‘ This suit was instituted by the appellants, the widow and certain heirs of J. J. Mewes, deceased, and the Home Bank of DeWitt and M. J. F. Mewes to restrain the bank from paying over to M. J. F. Mewes the sum of $6,600 on deposit in said bank and to have M. J. F. Mewes account to them and to recover of him the dower interest of the widow and the interest of the heirs in the funds.” The complaint does not contain any allegations that would have justified the court in rendering a judgment in favor of the appellant against the appellee bank for the funds in controversy. No such judgment was prayed for nor was any such judgment- rendered. The entire procedings, iso far as the appellee bank was concerned, were merely ancillary to the suit between the appellants and M. J. F. Mewes. The bank was made a party, as shown by the language of the temporary restraining order, only for the purpose of restraining it as a depositary of the funds, from paying out the same until the further order of the chancery court.

When the chancery court entered a decree adverse to appellants and dissolving the temporary order that had been issued against the appellee there was no longer any injunction or restraining order against the appellee. There was no judgment against it, and the decree that was entered against appellants and their appeal therefrom did not have the effect of continuing in force the temporary restraining order against the appellee. If appellants desired to continue the same in force until they perfected their appeal they should have made such request of the trial court, and after their appeal was lodged in this court, if they still desired to have the injunction maintained until the issues on appeal were decided, they should have presented to this court a prayer to that effect. This was their remedy. Hampton v. Hickey, 88 Ark. 329. See, also, Payne v. McCabe, 37 Ark. 318, and High on Injunctions, vol. 2 (3 ed.), § 1709.

The decree is correct, and is, therefore, affirmed.