Cherry v. Dillard
Supreme Court of Arkansas
Appeal from Marion Circuit Court; John I. Worthington, Judge; 1. The property was in custodia legis under a writ valid on its face, and replevin would not lie. No one except the mortgagee, where the property is mortgaged, can replevy.
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Appeal from Marion Circuit Court; John I. Worthington, Judge; 1. The property was in custodia legis under a writ valid on its face, and replevin would not lie. No one except the mortgagee, where the property is mortgaged, can replevy. The creditor is not liable where' he did not direct the levy. 42 Ark. 236; 58 Id. 354; 41 Id. 295; 94 Id. 216; 126 S. W. 842; Kirby’s Digest, § 6854, subd. 5; 57 Ark. 195; 127 S. W. 467; 94 Ark. 384; Kirby & Castle’s Digest, § 8426; 23 Tex. 269; 2 Gfreenl. Ev. (8 Ed.)„ § 560; 4 Gray 441. 2. The execution was not levied by direction of the creditor and he is not…
1Opinion of the CourtHumphreys, J.
Appellee brought replevin in the Marion Circuit Court against B. F. Stewart, constable of Jefferson township, Lee Sinor and appellant to recover a horse and mule which had been levied upon and taken into custody by the constable under an execution, regular on its face, issued on a judgment theretofore obtained by appellant against appellee. It was .alleged in the complaint that the Bank of Yellville had a mortgage on the horse and mule at the time the execution was levied on them and that for that reason they were not subject to levy .and sale under the execution.
Appellant answered for…
2Cases cited2 opinions
- Crowell v. BarhamSupreme Court of Arkansas · 1893
- Emerson v. HopperSupreme Court of Arkansas · 1910
3Cited by1 opinion
- Morrison v. BerrySupreme Court of Arkansas · 1926