LIDDELL v. JONES.

[76 Ark. 344, 88 S. W. 961.]

GARNISHMENT-Transfer of Lien.-A garnishment when carried into judgment operates to transfer to the garnisher all the rights and remedies possessed by the judgment defendant, including any lien to secure the indebtedness. (p. 99.)

CHATTEL MORTGAGES—Waiver of Lien.-If the holder of a chattel mortgage levies an execution upon the mortgaged property, he thereby waives his mortgage lien thereon. (p. 100.)

EXEMPTIONS-Effect of Garnishment.-A vendee who is garnished for the purchase price of chattels in his hands cannot claim an exemption therein. (p. 100.)

Hawthorne & Hawthorne, for the appellant.

J. H. Hill and F. G. Taylor, for the appellee.

345 HILL, C. J. The appellee Jones purchased two horses and harness of one Strong for one hundred and eighty dollars, and, to secure payment of the purchase money, executed a mortgage to Strong on the horses and harness and also one log wagon. Strong was indebted to Hancock, who sued him, and caused attachment to issue, and ran a garnishment on Jones. The result of this proceeding was the sustaining of the attachment, and a judgment against Jones in favor of Hancock for the debt of one hundred and eighty dollars, which he owed Strong for the horses. Hancock caused execution to issue, and the horses, harness and wagon were levied on. Jones filed a schedule of his personal property, and claimed this property as exempt. The circuit court held it exempt, and the sheriff, representing the rights of Hancock, the judgment plaintiff, prosecuted this appeal.

There are two lines of decisions on the effect of a garnishment: one holding that it amounts to a compulsory assignment of the debt, and carries with it the liens securing the debt; the other holding that it does not operate as an assignment, but as an impounding of the debt for the garnisher's benefit. The cases on this subject are collected in a note under section 192 of Rood on Garnishment. This court in Smith v. Butler, 72 Ark. 350, 80 S. W. 580, held that the garnishment, when carried into judgment, operated to transfer to the garnisher all the rights of the judgment defendant,

and give him the rights and remedies possessed by him, including a lien to secure the indebtedness. Therefore it follows that Hancock became the owner of the debt of Jones and the mortgage securing it, and became possessed of the same rights which Strong, the mortgagee, possessed.

When Hancock levied on the property in question, he waived the mortgage which he then owned by operation of law. No one else could levy on the property, because mortgaged chattels 346 are not subject to execution: Jennings v. McIlroy, 42 Ark. 236, 48 Am. Rep. 61. The mortgagee, however, can waive his mortgage rights, and levying an execution upon the property is inconsistent with the mortgage, and a waiver of it: Cox v. Harris, 64 Ark. 213, 62 Am. St. Rep. 187, 41 S. W. 426. It follows that the levy was proper, and the property subject to the execution.

The next question is whether Jones could claim the property as exempt. It is provided by article 9, section 1, of the constitution of 1874, and section 4966 of Kirby's Digest, that exemptions cannot be claimed in property in the hands of the vendee against the debt for its purchase. It is contended that Hancock, as an involuntary assignee of Strong, is not clothed with Strong's rights in this regard, but these cases settle that question against the appellant: Creanor v. Creanor, 36 Ark. 91; Morris v. Ham, 47 Ark. 293, 1 S. W. 519; Smith v. Butler, 72 Ark. 350, 80 S. W. 580. The log wagon was properly held to be exempt, as there was no debt for the purchase money due against it, and no mortgage was sought to be enforced against it in this action; in fact, a position inconsistent with the mortgage, so far as Hancock's rights were concerned, was taken. The court erred in holding the horses and harness exempt from seizure under the execution, as it was levied to enforce a debt for purchase money while the property was in the hands of the purchaser.

Reversed and remanded, with directions to enter judgment in conformity herewith.

The Effect of a Judgment Against a Garnishee is discussed in the note to Sessions v. Stevens, 46 Am. Dec. 339-346.

MILLER v. NUCKOLLS.

[76 Ark. 485, 89 S. W. 88.]

ABATEMENT OF ACTION.-If, in an action of slander, final judgment is entered for plaintiff, and the defendant appeals, and thereafter dies, the action becomes merged in the judgment, and there can be no abatement unless the judgment is set aside or reversed. (p. 101.)

APPEAL AND SUPERSEDEAS do not Vacate a judgment, but only stay proceedings thereunder. (p. 101.)

G. Jones, for the appellant.

W. A. Oldfield and Wright & Matheny, for the appellee.

486 McCULLOCH, J. This is an action for slander. The plaintiff (appellee) recovered judgment below, and the defendant (appellant) took an appeal to this court. Since the appeal was perfected the appellant died, and his attorney, as amicus curiae, presents this motion to abate the cause. The appellee responds to the motion, and asks that the cause be revived against the administrator or executor of the deceased.

At common law actions of this kind abated with the death of either party, the wrongdoer or the party injured. "Actio personalis moritur cum persona, was a maxim of the common law. The statute of this state providing for revival of causes of action for wrongs done to the person expressly excepts from its operation actions for slander or libel, thus leaving the common-law rule in force as to those actions: Kirby's Digest, sec. 6286. It does not follow, however, that after a verdict and judgment in favor of the plaintiff, an action for slander or libel abates. On the contrary, we hold that the cause of action becomes merged in the judgment, and unless the same be set aside or reversed, there can be no abatement. This view is sustained by authority: Newell on Slander and Libel, p. 375; 21 Ency. of Pl. & Pr. 351; Dial v. Holter, 6 Ohio St. 228; Akers v. Akers, 16 Lea (Tenn.), 7, 57 Am. Rep. 207.

An appeal and supersedeas do not have the effect of vacating a judgment, but only stay proceedings thereunder: Fowler v. Scott, 11 Ark. 675; 2 Cyc. 971; 20 Ency. of Pl. & Pr. 1240; Runyon v. Bennett, 4 Dana, 598, 29 Am. Dec. 431;

Low v. Adams, 6 Cal. 277; Martin v. South Salem Land Co., 94 Va. 28, 26 S. E. 591; Fawcett v. Superior Court, 15 Wash. 342, 55 Am. St. Rep. 894, 46 Pac. 389.

The motion to abate is therefore overruled.

Where the Defendant in an Action of Libel died pending an appeal from a judgment in the action, the action was held to be abated in Akers v. Akers, 16 Lea, 7, 57 Am. Rep. 207. According to Shayne v. Evening Post Pub. Co., 168 N. Y. 70, 85 Am. St. Rep. 654, a cause of action for libel against a corporation survives its dissolution and may be prosecuted against its trustees.

RODGERS v. CHOCTAW, OKLAHOMA AND GULF RAILROAD COMPANY.

[76 Ark. 520, 89 S. W. 468.]

TRIAL Directing Verdict-Review.-If the trial court directs a verdict for the defendant, the question on appeal is whether the evidence introduced by plaintiff was legally sufficient to support a verdict in his favor, and in testing that question the testimony must be given its strongest probative force, and that view of the facts accepted which it will warrant most favorable to plaintiff's cause of action. (p. 103.)

RAILROADS.-Passengers Riding in freight or mixed trains must be deemed to assume all the inconveniences and risks usually and reasonably incident to transportation or travel on such trains, and are not entitled to insist upon having the same care and attention as may be justly demanded upon regular passenger trains. (p. 104.) RAILROADS-Passengers on Freight Trains.-If a railroad company undertakes the carriage of passengers on freight trains it owes such passengers the same high degree of care to protect them from injury as if they were on a regular passenger train, but at the same time the passenger assumes the increased risk incident to the operation and management of such trains. (pp. 104, 105.)

RAILROADS-Passengers on Freight Trains-Negligence of Train Men. If the conductor on a freight train is aware of the peril of a passenger thereon and can, by the exercise of ordinary care, warn him, and fails to do so, or if he can by the exercise of ordinary care prevent a sudden movement of the train and fails to do so, the railroad company is liable for the injury to a passenger resulting therefrom. (p. 105.)

RAILROADS—Passengers on Freight Trains.—Although a passenger on a freight train is negligent in putting himself in a perilous position, yet if the direct cause of the injury to such passenger is the omission of the railroad employés, after becoming aware of his peril, to use a proper degree of care to protect him, the railroad company is liable. (p. 105.)

C. F. Greenlee, for the appellant.

E. B. Pierce and T. S. Busbee, for the appellee.

521 McCULLOCH, J. Appellant, J. D. Rodgers, sued the Choctaw, Oklahoma and Gulf Railroad Company to recover damages for injuries caused by negligent operation of its train while he was a passenger thereon. A trial was had before a jury, appellant testified in his own behalf, and rested his case, whereupon the court instructed the jury to return a verdict in favor of the defendant, which was done.

522 The only question before us for determination is whether the evidence introduced by the plaintiff was legally sufficient to support a verdict in his favor; and in testing that question we must give the testimony its strongest probative force, and accept that view of the facts which it will warrant most favorable to plaintiff's cause of action: Catlett v. St. Louis etc. Ry. Co., 57 Ark. 461, 38 Am. St. Rep. 254, 21 S. W. 1062; Ford v. St. Louis etc. Ry. Co., 66 Ark. 363, 50 S. W. 864; Burns v. St. Louis etc. Ry. Co., 76 Ark. 10, 88 S. W. 824.

Appellant lived at Brinkley, a station on defendant's railroad, but was engaged in business at a switch known as the G. and C. Siding, six and one-half miles west of Brinkley, on defendant's road. Passenger trains did not stop at this switch, and appellant was accustomed to ride out there two or three times a week on freight trains which stopped there. On the occasion in question he boarded a freight train at Brinkley to go to the switch, and also shipped a lot of merchandise to be put off there. En route he became sick, and his bowels wanted to move, the call being too urgent to await the arrival at his destination. The caboose was not provided with a closet, and he asked the conductor to slow the train down so that he could get off, attend to the call of nature, and walk the remainder of the distance to the switch. The conductor declined to do that. Shortly afterward the train reached the switch, and was brought to a stop, but the caboose was stopped over a trestle eighty-five feet long and twenty feet above the surface of the ground.

Appellant testified that he did not know that the caboose was over the trestle, and walked out on the rear step, expecting to get off; that as he walked out on the step he met the conductor going into the caboose, and the latter