Williams v. Brooks , 269 Ark. 919 ( 1980 )

Ernie E. Wright, Chief Judge.

The appellant Mrs. Williams brought suit against Herbert H. Brooks and appellee Sheriff Larry Morris to recover damages and the value of her mobile home which was seized and sold by Sheriff Morris and his deputies acting under his direction pursuant to a writ of attachment Brooks caused to be issued upon a judgment he obtained in an earlier suit against appellant’s husband.

All parties moved for a directed verdict. The court granted a directed verdict in favor of Sheriff Morris, but denied the motions of appellant and Brooks for directed verdicts. The issues between appellant and Brooks were submitted to the jury resulting in a hung jury.

Appellant contends the trial court erred in submitting the case to the jury when appellant and defendants below all asked for directed verdicts.

As there has been no final order or judgment in the case against Brooks no action of the trial court in that phase of the litigation is subject to appeal, and we do not review same. The case remains on the trial docket subject to trial anew. McConnel & Son et al v. Sadle, 248 Ark. 1182, 455 S.W. 2d 880 (1970).

The issues before us for review are the alleged errors of the trial court in granting a directed verdict in favor of appellee Sheriff Morris, refusal to grant a directed verdict in favor of appellant, and refusal to allow evidence of appellant’s attorney fees as an element of damage.

The evidence is undisputed that Sheriff Morris and his deputies levied upon a mobile home owned solely by appellant pursuant to a writ of execution or attachment issued on a judgment in favor of Herbert H. Brooks against appellant’s husband, and thereafter removed and sold the property at public auction.

Article 9, § 7 of the Arkansas Constitution protects a wife’s separate property from seizure for debts of her husband.

Appellee Morris defended on the ground he was acting pursuant to a writ of attachment and court order issued in another action in which Brooks obtained a judgment against appellant’s husband. Appellant was not a party to that proceeding. Documents in the official court file in that case were identified by the clerk and offered and admitted in evidence, but were not incorporated as exhibits in the record brought forward on appeal. There is no indication counsel for Appellee Morris requested leave to substitute copies of the exhibits from the official files of the other case. The record does not disclose the precise contents of the writ of attachment under which the sheriff levied upon appellant’s mobile home. However, the evidence is clear appellant was not a party to the case out of which the attachment arose, and that the writ did not command the sheriff to levy upon property belonging appellant. The evidence shows the sheriff and his deputies were informed the mobile home was not the property of appellant’s husband. The evidence also reflects the sheriff required a bond from Brooks to protect himself against possible liability, but the bond was not produced or offered in evidence.

In Wright v. Husband, 193 Ark. 347, 99 S.W. 2d 583 (1936), the court held that where the sheriff, under a writ of attachment, took property from persons in no way connected with the original suit, after being told the property belonged to a third person, the taking was not innocent, but it constituted a willful tort.

We conclude there was substantial evidence to submit to the jury the issue of the sheriff s liability and damages, and that the court erred in directing a verdict in favor of the sheriff. It is error to direct a verdict where there is any substantial evidence tending to establish an issue in favor of the party against whom the verdict is directed. Home Mutual Fire Insurance Company v. Cartmell, 245 Ark. 45, 430 S.W. 2d 849 (1968).

As to appellant’s contention the court erred in failing to direct a verdict for appellant, which we consider only as to the case against the sheriff for reasons above stated, it may well have been appropriate for the court to direct a verdict in favor of the appellant as to liability on the part of the sheriff and leave it to the jury to determine the amount of the recovery. However, we do not find the rule authorizing such course to be mandatory. It is a matter within the trial court’s sound discretion. Lee Rubber & Tire Corporation v. Camfield, 233 Ark. 543, 345 S.W. 2d 931 (1961).

We find no merit in the assertion the trial court erred in refusing to permit appellant to make proof of her attorney fees as an element of damage, and appellant cites no Arkansas statute or case authorizing recovery of attorney fees in this type action.

Reversed and remanded for retrial as to all parties.

Penix, J., dissents.