Ark. Code Ann. § 16-66-418 (2020)
Discovery in aid of execution — Equitable proceedings — Attachment
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- After an execution of fieri facias directed to the county in which the judgment was rendered or to the county of the defendant's residence is returned by the proper officer, either as to the whole or part thereof, in substance, no property found to satisfy the execution, the plaintiff in the execution may institute an action in the court from which the execution issued, or in the court of any county in which the defendant resides or is summoned, for the discovery of any money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled, and for subjecting the money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled to the satisfaction of the judgment.
- In such actions, persons indebted to the defendant in the execution or holding the money or property in which he has an interest, or holding the evidences or securities for the same, may be also made defendants.
- The answers of each defendant shall be verified by his or her own oath and not by that of an agent or attorney, and the court shall enforce full and explicit discoveries in the answers by attachment.
- In the actions mentioned in the preceding subsections, the plaintiff may have an attachment against the property of the defendant in the execution, similar to the general attachments provided for in Chapter III of Title VIII of the code, without either the affidavit or bond therein required.
- A lien shall be created upon the property of the defendant, the levy of the attachment, or service of the summons with the object of the action endorsed thereon, on the person holding or controlling his property.
- The court shall enforce the surrender of the money, or security therefor, or of any other property of the defendant in the execution which may be discovered in the action. For this purpose, the court may commit to jail any defendant or garnishee failing or refusing to make such surrender, until it shall be done, or the court is satisfied that it is out of his or her power to do so.
History. Civil Code, §§ 473-477; C. & M. Dig., §§ 4366, 4368-4371; Pope's Dig., §§ 5378, 5380-5383; A.S.A. 1947, §§ 30-901 — 30-905; Acts 2003, No. 1185, § 202.
Publisher's Notes. Chapter III of Title VIII of the code, referred to in this section, means §§ 216-291 of the Code of Practice in Civil Cases of 1869. See parallel reference tables in tables volume.
Amendments. The 2003 amendment deleted “by equitable proceedings” following “may institute an action” in (a)(1).
Research References
Ark. L. Rev.
Discovery Procedure in Aid of Judgment, 9 Ark. L. Rev. 390.
Killenbeck, And Then They Did …? Abusing Equity in the Name of Justice, 44 Ark. L. Rev. 235.
Discovery — Amount of Adversary's Insurance, 9 Ark. L. Rev. 456.
Mark James Chaney, Recent Developments: Arkansas Supreme Court Departs from Uniform Trust Code, Holds Non-Spendthrift Trusts for Mandatory Lifetime Distributions Cannot Be Attached by the Beneficiary's Creditors, and Equitable Liens on Future Trust Distributions Are Not Available to Creditors Unless the Funds Are Permanently Unreachable Through Any Other Legal Process, 67 Ark. L. Rev. 509 (2014).
U. Ark. Little Rock L. Rev.
Lynn Foster, Arkansas’s Trust Code and Trust Planning: A Ten-Year Perspective, 38 U. Ark. Little Rock L. Rev. 301 (2016).
Case Notes
Construction.
“Defendant” designated in language, “or in the court of any county in which the defendant resides, or is summoned,” has reference to judgment debtor defendant. Ritchie Grocer Co. v. Arnold, 218 Ark. 436, 236 S.W.2d 718 (1951).
Chose in Action.
A “chose in action,” as used in subdivision (a)(1) of this section, means, literally, a thing in action, and is the right of bringing an action, or a right to recover a debt or money, or a right of proceeding in a court of law to procure the payment of a sum of money, or a right to recover a personal chattel or a sum of money by action; a chose in action is property, and to deny someone the same violates U.S. Const. Amend. 14. Agribank, FCB v. Cupples, 850 F. Supp. 780 (E.D. Ark. 1993).
If there is legal authority in this state to attach a writ of execution to property in general, then that right must also extend to cover choses in action. Agribank, FCB v. Cupples, 850 F. Supp. 780 (E.D. Ark. 1993).
Complaints.
Complaint was held to state a cause of action under this section. Morgan Utils., Inc. v. Perry County, 183 Ark. 542, 37 S.W.2d 74 (1931).
Jurisdiction.
Chancery court had jurisdiction of creditor's suit based on a foreign judgment against nonresident debtor statutorily served in other state, since judgment at law on the foreign judgment in the state could not be obtained. Miller v. Maryland Cas. Co., 207 Ark. 312, 180 S.W.2d 581 (1944).
Discovery proceeding was not within jurisdiction of chancery court. Ritchie Grocer Co. v. Arnold, 218 Ark. 436, 236 S.W.2d 718 (1951).
Order issued by circuit court in action which required an equitable proceeding under this section was reversed and remanded for transfer to chancery court. Cummings v. Fingers, 296 Ark. 276, 753 S.W.2d 865 (1988).
Judgment creditor's claim under this section was improper where the debtors' future distributions in trusts would become reachable when they became due, and thus, there was another legal process that could be utilized. J.B. Hunt, LLC v. Thornton, 2014 Ark. 62, 432 S.W.3d 8 (2014).
Liens.
While a judgment creditor may establish a lien upon the property of an apparently insolvent debtor in the hands of a third party by instituting equitable proceedings to subject the property to the payment of his claim, neither this nor the subsequent sections can give the judgment creditor a prior lien on the property over an existing lien in favor of a third person not made a party to the suit. N.M. Uri & Co. v. McCroskey, 135 Ark. 537, 205 S.W. 976 (1918).
Parties.
Proceedings for discovery against third party must be in connection with proceedings against judgment debtor who is indispensable party to suit. Ritchie Grocer Co. v. Arnold, 218 Ark. 436, 236 S.W.2d 718 (1951).
When suit is instituted against judgment debtor in proper forum for discovery of his property, third persons indebted to him or holding property in which he has interest may be made parties defendant. Ritchie Grocer Co. v. Arnold, 218 Ark. 436, 236 S.W.2d 718 (1951).
Payment.
Order of court that debtor pay into court a certain sum of money or be in contempt of court was erroneous when made without allegation or proof that debtor had that amount of money in his possession. Leonard v. State, 170 Ark. 41, 278 S.W. 654 (1926).
Public Corporation.
Since a county cannot in person make that required oath and is prohibited from doing so by an agent or attorney, it follows that either the answer must be received without oath, or the public corporation was not intended to be liable to the process of garnishment. Boone County v. Keck, 31 Ark. 387 (1876).
Substantial Compliance.
This section was held substantially complied with where sheriff who served execution reported that debtor had no property to satisfy the execution since all his personal property was mortgaged. Raley v. Mitchell, 196 Ark. 504, 118 S.W.2d 674 (1938).
Suit for Attachment and Conversion.
Suit by judgment creditor for attachment of property and for conversion, was proceeding for discovery. Ritchie Grocer Co. v. Arnold, 218 Ark. 436, 236 S.W.2d 718 (1951).
Cited: Robinson v. Citizens' Bank of Pettigrew, 135 Ark. 308, 204 S.W. 615 (1918); Arkansas La. Gas Co. v. Luster, 604 F.2d 31 (8th Cir. 1979).