(on rehearing). ' Appellant insists, on motion for rehearing, that the evidence does not warrant the conclusion reached by the chancellor and confirmed by this court, that S. S. Bonds was solvent, and that no necessity existed for the appointment of a receiver. We have read the testimony again, and think the finding of the chancellor is supported by the weight thereof. The testimony brings the case -within the rule recognized in Riner v. Ramey-Millburn, referred to in the original opinion, to the effect that, where a litigant obtains the appointment of a receiver without probable cause, and inferably with malice, he will be liable for resulting damages, although there is no statute in the State requiring* the execution of an indemnifying bond as a prerequisite to obtaining the appointment of a receiver.
Appellant also insists that it is not bound by the answer of the Van Burén County Bank to the writ of garnishment filed on January 19,1927, to the effect that it had only eighty-eight cents belonging to S'. S. Bonds, because the answer was prematurely filed. The answer was filed on the return day named in the writ, and the truth of the statements contained therein was not traversed in writing. This court ruled in the case of Beasley v. Haney, 96 Ark. 568, that the untraversed answer by a garnishee must be presumed to be true, even if an issue had properly been joined in the garnishment proceeding*. We think the finding of the chancellor to the effect that there was no ground for the issuance of the writ of garnishment is sustained by the weight of the testimony. Van Burén County Bank had a bona fide indebtedness against the 'Bonds, and took a mortgage on unincumbered real estate to secure same. There'is nothing in the record to indicate that the mortgage to the bank was fraudulent. It is true that, after the Van Burén bank filed its answer, it loaned $300'to Herman Bonds, 14-year-old son of S. S. Bonds, and that S. -S. Bonds bought cattle with it, under an agreement to divide the profits with his son. The record does not reflect that S. -S. Bonds deposited any of his individual money in the bank. A little later on it seems that he purchased cattle with money which he borrowed from Brad Fraser, the cashier of the Van Burén County Bank, and checked on Fraser’s account for such amounts as he used. As stated above, there is nothing in the record to indicate that S. S. Bonds ever deposited any of his own money in the bank after he filed his answer, which was not controverted.
The motion for rehearing is therefore overruled.