Ark. Code Ann. § 16-110-131 (2020)

Case Notes

Constitutionality.

Absent a judge's participation or supervision, there is a significant risk that a writ of attachment will be issued even though the statutory attachment procedures have not been met; this expressly overrules Springdale Farms, Inc. v. McIlroy Bank & Trust, 281 Ark. 371, 663 S.W.2d 936 (1984), which held that the issue of prejudgment attachments by the clerk met the “safeguards test” and satisfied due process. McCrory v. Johnson, 296 Ark. 231, 755 S.W.2d 566 (1988).

In General.

Upon discharge of an attachment, defendant is entitled to judgment for the value of the property sold under the writ of attachment. Hines v. Stephens, 90 Ark. 518, 119 S.W. 664 (1909).

The defendant might elect to proceed under subsection (a) or subsection (b) of this section, but cannot avail himself of the provisions of both. Harrison v. Fulk, 128 Ark. 229, 193 S.W. 532 (1917).

Construction.

This section is mandatory and requires all issues to be disposed of in one suit. Davidson v. Mayhue, 120 Ark. 344, 179 S.W. 371 (1915).

Applicability.

Where, because of lack of jurisdiction, no issues were determined in the justice court, defendant's right to bring subsequent suit for damages resulting from alleged wrongful attachment would not be controlled by this section. Smyrna Baptist Church v. Burbridge, 205 Ark. 108, 167 S.W.2d 501 (1943).

Costs.

Judgment for the defendant in an action when the debt is controverted carries with it the costs of an attachment ancillary to the suit. Malpas v. Lowenstine, 46 Ark. 552 (1885) (decision under prior law).

Damages.

Owner of property is not estopped to claim damages for wrongful attachment by consenting to application of proceeds. Walker v. Fetzer, 62 Ark. 135, 34 S.W. 536 (1896).

—Assessment of Damages.

There should be no assessment of damages upon the discharge of an attachment before the trial or final disposition of the case. Kurtz v. Dunn, 36 Ark. 648 (1880).

In assessing damages for a wrongful attachment, evidence is admissible to prove the value before the seizure and the extent of its depreciation at time of restoration, and it may not be shown that, had the levy not been made, the debtor would have sold the property at a reduced price. Estes v. Chesney, 54 Ark. 463, 16 S.W. 267 (1891).

When the attached property has been sold, the court should not order a return of the property but, rather, should assess damages to cover the value at time of seizure and interest to day of trial. Norman v. Fife, 61 Ark. 33, 31 S.W. 740 (1895).

When the jury disregarded the evidence and instructions of the court and returned a verdict for excessive damages, the judgment must be reduced. Hines v. Stephens, 90 Ark. 518, 119 S.W. 664 (1909).

It is error, on dissolving an attachment, to refuse to permit the jury to assess damages where the evidence tends to show that defendant has sustained damages by reason of the attachment. Rodgers v. Cades, 103 Ark. 187, 146 S.W. 507 (1912).

Damages should be assessed by the jury. Bank & Trust Co. v. Stafford & Wimmer, 129 Ark. 172, 195 S.W. 397 (1917).

—Measure of Damages.

Damages are not recoverable for injury to credit and loss of prospective profits in business. Holliday v. Cohen, 34 Ark. 707 (1879).

Upon the discharge of an attachment, only such damages can be recovered by the defendant as are actual and the natural and direct consequences of the attachment; these damages do not include attorney's fees. Patton v. Garrett, 37 Ark. 605 (1881).

Upon a showing that the attachment was wrongfully sued out, the measure of damages is the actual loss from being deprived of the use of the property, the injury to it, and the expenses incurred in defending the attachment; the value of the property when attached is not the measure unless the property is entirely lost. Boatwright v. Stewart, 37 Ark. 614 (1881).

When goods are seized and sold under a wrongful attachment which is subsequently dissolved, their value at the time of seizure with interest to the date of trial, less the sum for which they sold, will constitute the measure of damage. Blass v. Lee, 55 Ark. 329, 18 S.W. 186 (1892); Norman v. Fife, 61 Ark. 33, 31 S.W. 740 (1895).

When, upon the dissolution of an attachment, defendant is awarded damages less than the amount he is adjudged to owe the plaintiff, the smaller claim should set off against the larger and judgment rendered for the balance in favor of plaintiff. Popplewell v. Hill, 55 Ark. 622, 18 S.W. 1054 (1892).

Where property was sold and proceeds applied to payment of plaintiff's judgment, the amount so applied should be deducted from the damages recoverable by defendant on dissolution of attachment. Scanlan v. Guiling, 63 Ark. 540, 39 S.W. 713 (1897).

Liability of Plaintiffs.

When the attachment is wrongfully sued out, the plaintiff and his sureties are liable for any waste occurring to the attached property in the hands of the officer levying the attachment. Boatwright v. Stewart, 37 Ark. 614 (1881).

The personal expenses of a defendant in attachment, incurred in prosecuting his suit for injury caused by the attachment, cannot be assessed against the plaintiff and his bondsmen on discharge of the attachment. Goodbar v. Lindsley, 51 Ark. 380, 11 S.W. 577 (1888).

Plaintiff in attachment is not liable for injury resulting from the sale of defendant's property under execution, although the issue of the execution may have been precipitated by the attachment. Goodbar v. Lindsley, 51 Ark. 380, 11 S.W. 577 (1888).

The attempted levy upon accounts by seizing the books containing them does not render the plaintiff liable for losses incurred in the collection thereof through a supposed inability to collect the accounts owing to such levy. Goodbar v. Lindsley, 51 Ark. 380, 11 S.W. 577 (1888).

Parties.

In proceedings under this section no service of notice or process on the sureties is necessary. Fletcher v. Menken, 37 Ark. 206 (1881).

Parties executing a bond of indemnity to induce a levy on certain goods under attachment become participants in the trespass where the goods are wrongfully attached. Rice v. Wood, 61 Ark. 442, 33 S.W. 636 (1896).

Cited: Lide v. Carothers, 570 F.2d 253 (8th Cir. 1978); Stephens v. Walker, 743 F. Supp. 670 (W.D. Ark. 1990).