Wilson v. Overture

248 S.W. 898, 157 Ark. 385, 1923 Ark. LEXIS 188

• Court: Supreme Court of Arkansas
• Decided: March 5, 1923
• Status: Published

Opinion

Hart, J.,

(after stating the facts). Sec. 4916 of Crawford & Moses’ Digest in effect provides that if any garnishee upon whom personal service has been had shall neglect or refuse to answer the„ interrogatories exhibited against him, the court before whom the matter is pending shall enter judgment against such garnishee for the full amount specified in the plaintiff’s judgment against the original defendant, together with costs. Under this act final judgment may be rendered against a garnishee upon default made by him, or when, on trial, the court finds that he is indebted to the defendant in the original judgment. Norman v. Poole, 70 Ark. 128; and Tiger v. Rogers Cotton Cleaner & Gin Co., 96 Ark. 1.

In the instant case, judgment by default was rendered against the garnishee. The only question raised by the appeal is whether the allegations of the complaint are sufficient to support the decree entered upon the default of the garnishee. Koons v. Markle, 94 Ark. 572, and cases cited.

It is claimed 'by counsel for the garnishee that the complaint is defective in that it did not charge as a fact that McCulloch was indebted to the defendants. *

It will be noted from our statement of facts that the complaint only alleges that plaintiff is informed and believes that B. W. McCulloch is indebted to the defendants in the sum of $11,775.' We -think the defect is fatal unless this form of pleading is allowed by our Code. There is no special form of pleading required in garnishment proceedings, and we must therefore look to our general Code provisions on the question.

Under § 1187 of Crawford & Moses’ Digest the complaint must contain a statement in ordinary and concise language, without repetition, of the facts constituting the plaintiff’s cause of action. This provision requires that the facts relied upon should be directly and positively alleged and not stated by way of argument, inference, or belief. The statute requires the facts to be alleged so that an issue may be made thereon. The statement in the pleadings should be made in direct and positive terms, so that, if it be necessary for the other party to respond to them, he may be able to do so in terms equally direct and positive. The issue tendered by the complaint is not as to the existence of the fact of whether or not the garnishee was indebted to the defendant, but as to the plaintiff’s information and belief on this matter.

Therefore the decree was not based upon a complaint which showed a good cause of action, and was erroneous.

A default after due service of summons admits only the allegation of the complaint, and, if they are insufficient to support the judgment, it will be reversed. Chaffin v. McFadden, 41 Ark. 42; Benton v. Holliday, 44 Ark. 56, and American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263.

As supporting the views herein expressed see also Nichols & Sheppard Co. v. Hubert, 51 S. W. 1031, where the Supremo Court of Missouri held that a petition in a creditor’s suit, which avers that plaintiff is informed and believes certain facts, thereafter recited, which are essential to plaintiff’s case, is demurrable, as it does not allege the existence of the facts.

It follows that the decree must be reversed, and the cause remanded for further proceedings in accordance until the principles of equity and not' inconsistent with this opinion.