text:
    Reynolds, Ex’r, use, etc., vs. McCallum, Adm’r.
    Supreme Court — Practice : When cause submitted, dismissed.

    Where a cause has been submitted and it appears that the transcript was not filed within three years after the rendition of the judgment, and no extension of time was asked for the filing of the same, the submission will be set aside and the cause dismissed.

      APPEAL from La Fayette Circuit Court.
    Hon. G-. W. McCown, Circuit Judge.

      Rose & Green, for appellant.
   McClure, C. J.

On the 23d. day of May, 1870, an appeal was granted by the circuit court of La Payette county, and, on tbe 29th of August, 1873, the transcript was filed in this court. On tbe last mentioned day a summons was issued, directed to tbe administrator of tbe estate of Lucy Hamilton, deceased, service of wbicb was accepted by appellee’s attorney, waiving exceptions to form of service, but as to nothing else. On the first day of tbe present term, tbe cause was called and submitted at tbe instance of the appellant, tbe court not noticing that tbe appeal bad been granted more than three years before tbe filing of tbe transcript. On tbe 17th of December, 1873, counsel for tbe appellee filed a motion to dismiss tbe appeal on the ground that tbe transcript bad not been filed in this court witbin the time prescribed by law. On tbe next day, counsel for appellant filed a motion to strike tbe motion to dismiss from the files, on tbe ground that the cause was submitted before the filing of tbe motion to dismiss.

The code provides that either party to an action shall be granted an appeal as a matter of right, on motion made in tbe circuit court, or by tbe clerk of this court in vacation. Sec. 859. By section 862 of tbe code, it is made tbe duty of the appellant to file an authenticated copy of tbe record in the clerk’s office of tbe supreme court, witbin ninety days after the appeal is granted, and this court, for good cause shown, is authorized to extend tbe time witbin wbicb tbe transcript may be filed. No extension of time has ever been asked in this case, nor has any showing been made why tbe transcript was not sooner filed. Section 867 of tbe code dedares that an appeal shall not be granted after the expiration of three years from the date of the rendition of the judgment.

In view of the fact that the transcript was not filed here within three years after the rendition of judgment, we direct that the submission heretofore had be set aside, and the cause is dismissed, and the clerk of this court is hereby directed not to docket a cause or file a transcript in his office, after the expiration of ninety days, in cases where the appeal was granted in the court below.


source: Caselaw Access Project

author: Bennett, J.

license: Public Domain

text:
    Henry et al. vs. Steele, Judge.
    Courts or Equity : When cannot enjoin proceedings of county officers, etc.

    Courts of equity have no jurisdiction to enjoin the proceedings of the officers of a county and vacate its organization, where such organization does not interfere with some individual right; the state, on quo warranto, is the only proper party to inquire into the right of county officers to exercise their official functions in disputed territory, or to determine the number of square miles contained in a county.
    PETITION fop. Prohibition.

      A. H. Garland and D. W. Jones, for petitioner.

      Rose & Green and H. B. Stewart, for defendant.
   Bennett, J.

On the 13th day of September, 1873, Samuel Henry et al. filed in the office of the clerk of this court, a petition praying for a writ of prohibition against Thomas O. T. Steele, judge of the 8th judicial circuit. The petition alleges that, on the 11th day of August, 1873, Mathew "VY. Locke et al., citizens of Sevier county, presented a complaint in equity to Thomas O. T. Steele, judge of the 8th judicial circuit, to enjoin the acts and proceedings of certain officers of Howard county, and to declare the organization of said county illegal, and the law creating the same unconstitutional. This complaint made Henry et al. defendants.

Henry et al. appeared and filed their answer and 'demurrer, accompanied with the affidavits of several parties. Upon the hearing, Judge Steele neither denied nor refused the prayer of the complainants, and no final disposition of the case, was made.

Afterward, on the 1st day of November, the matter came up before the Sevier county court, upon the bill, answer and proofs. The court made an order enjoining and restraining Samuel Henry, William G. Dorsey et al. from exercising any power or authority or doing or performing any official act or function over certain defined territory mentioned in the order, until the further order of the court.

The original bill filed in the Sevier circuit court is based solely on the legality and constitutionality of the act of the general assembly, creating the county of Howard, approved April 17, 1873.

Defendants insist that a court of equity has no jurisdiction to enjoin the proceedings of the officers of a county and vacate its organization, where such organization does not interfere with some individual rights.

A county is a public corporation, created for governmental purposes. It is a part of the political organization of a state, brought into being by the mere will of the legislature. The state is the only proper party to institute proceedings to inquire into the validity of its franchises. It is not within the province of equity to inquire into the right of officers of a county to exercise their official functions in disputed territory, or to determine the number of square miles contained in a county.

These are purely legal questions, to be tried by quo warranto,, to which the state must be a party; this affords a complete and ample remedy at law. Att'y Gen’l v. Utica Ins. Co., 2 G. C. R., 370; Angel & Ames on Corp., secs. 731-765.

It has been well settled that there is no general jurisdiction in equity to remove corporate officers, or to vacate, annul) or dissolve a corporation. In all cases where this power has been exercised by a court of chancery, the jurisdiction has been expressly conferred by statute, or the writ of quo warranto or an information in the nature of a quo warranto was inoperative, and there was no other complete and adequate remedy provided by law.

Such is the case in the state of Tennessee, where quo warranto and the information in the nature thereof are not in force for the want of a court of general original jurisdiction extending over the whole state. So there remained no remedy but a bill in chancery to rectify, annul or dissolve a corporation where they have been found acting illegally, and in several instances involving the legality of acts creating counties, the chancery courts of the state have entertained j urisdiction, and by injunction have controlled county commissioners and county officers. Bradley County v. The Commissioner of Powell County, 2 Humph., 428; Ford v. Farmer, 9 id., 152.

But in no other proceeding except by the state’s writ of quo warranto, have courts declared county organizations formed in accordance with a legislative enactment, null and void, unless it was clearly shown that some individual private rights were to be seriously affected by virtue of that organization.

The bill, as presented to the Sevier circuit court, makes out no case for equitable jurisdiction, and should not have been entertained by the court.

As to the question raised by the defendants upon a motion for a rule against the judge of the 8th judicial district, to show cause why he should not be punished for contempt for proceeding to a judgment in the cause, after an application had been made to the clerk of this court for a writ of prohibition, we do not deem it necessary to say more than this, that the motion will be overruled. While there may be some doubt as to the propriety of a judge proceeding in a cause after he has notice that an application for a writ of prohibition will be made to a supervisory court, yet we do not think the mere filing of such application in the office of the clerk, and notice of it to the judge, will necessarily have the effect to stop all proceedings.

The judgment rendered in this cause is void, and the writ of prohibition will be granted.


author: Compton, Sp. J.

text:
    Berry, Adm’x, et al. vs. Hardin et al.
    Circuit Courts : As chancery courts, cannot issue writs, of certiorari.
    The circuit courts, sitting as courts of chancery, have no power to award writs of certiorari to bring up the proceedings of county courts and quash them.
    Practice : Mistake in kind of proceedings, how corrected.

    Under the code of practice, if a party commit an error in the kind of proceedings adopted, he may change and have the same transferred to the proper docket, either before answer filed, without motion, or after, on motion; but the court is not bound to make the transfer unless asked to do so by the party desiring it.
    APPEAL’ from Crittenden Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.

      Lyles & Brown, for appellants.

      Adams & Dixon, for appellees.
   Compton, Sp. J.

In this Case the appellants brought their complaint in equity to restrain the collection of a tax alleged to have been illegally levied by the county court of Crittenden county, for the building of a court house and jail; and also to have the proceedings of the county court touching the levy of said tax, brought up by writ of certiorari and quashed. On demurrer, the complaint was dismissed for want of equity, and the complainants appealed.

The circuit court, sitting as a court of chancery, had no power to award a writ of certiorari to bring up the proceedings of the county court and quash them, if found to be void; this could have been done in the exercise of its common law powers only. It is insisted, however for the appellants, that, conceding this to be so, the complaint should not have been dismissed; but that, under the code, the pleading should have been amended, and the cause transferred to the law side of the court. The transcript fails to show that the complainants in the court below made any effort to have the proceedings transferred; and, for this reason, they cannot now complain of the dismissal. This question arose in Phelps & Jones v. Jackson, 27 Ark., 585, where, after referring to the rule of practice prior to the adoption of the code, this court said: “ The code, however, has changed this practice, and allows a plaintiff who has committed an error as to the kind of proceedings adopted, to change them and transfer the action to the proper docket ; but this change and transfer must be done by the plaintiff. If the error is discovered before answer is filed, it may be done without motion ; if afterward, on motion in court. * * It is within the province of the court to make the transfer, but it is not bound to exercise this discretion, unless asked to do so by the party desiring it. When the bill has been examined and judgment pronounced of “ no equity in it,” unless the party complaining makes some effort to have the proceedings changed to the proper forum, it is the duty of the chancellor to dismiss the bill.”

The complaint alleges the illegality of the tax upon several distinct grounds, set forth at length; but nowhere alleges facts necessary to bring the matter within any acknowledged head of equity jurisdiction ; consequently, this case falls within the rule laid down in Clayton v. Lafargue, 23 Ark., 137, and in Floyd v. Gilbreath, 27 id., 676; and the complaint was properly dismissed.

Holding that the court below had no jurisdiction, it is not deemed necessary to enter into a discussion of the several propositions relied on by the appellants to show the illegality of the tax in question. It may not be improper, however, to say, for the benefit of the parties litigant, that if the proceeding had been on the law side of the court by certiorari, it could not, in our opinion, have been maintained on the grounds alleged in the complaint.

The decree is in all things affirmed, with costs.

Stephenson, J., being disqualified, did not sit in this case.


author: Barrenly, Sp. J.

text:
    Whitehead and wife vs. Arkansas Central Railroad Co.
    Railroads: Proceedings to condemn right of way, eta., when not valid.

      The twenty-third section of “An act to provide for a general system of railroad incorporation,” approved July, 23,1868, is in conflict with, article V, section 48 of the constitution, and all proceedings had in conformity to, or in the manner prescribed by said section for the condemnation of lauds for public or railroad uses, are invalid.
    APPEAL from Phillips Circuit Court,
    Hon. M. L. Stephenson, Circuit Judge.

      A. H. Garland, for appellants.
   Barrenly, Sp. J.

The appellants brought suit in the Phillips circuit court against the appellees, to recover damages for alleged, trespasses and injuries committed upon the lands of the appellants, by the appellees, in wrongfully entering into and upon and appropriating the same for a right of way.

The appellees answered, admitting that they entered upon the lands of the appellants, and occupied the same, but denied that their said entry was unlawful; averring that they were a duly incorporated railroad company, under the laws of the state, and, by virtue of said laws, they had a right of way over the lands in question; that the requirements of the law for the condemnation of said lands had been complied with, and by an order of court, at a previous term, upon proceedings had for that purpose, in accordance with law, the right of way over said lands had been vested in them, and that no damages had by such entry and appropriation accrued to the appellants. They file with and make a part of 'their answer a certified transcript of the record and judgment of the court condemning said lands and vesting in them the right of way.

The appellants demurred to the answer on the ground that “ the facts stated in the answer are not sufficient to constitute a defense at law; because article V, section 48 of the constitution of the state says: compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law, and the answer shows no such compliance with the law.”

■ The twenty-third section of “ An act to provide for a general system of railroad incorporation,” approved July 23, 1868, and under which the proceedings to condemn the property in this case were had, is, in substance, so far as is material for the consideration of the question presented, as follows: That where the lands are not acquired by the gift of the owner, or by agreement of the parties, the corporation may present their petition to the circuit court in the district where the lands lie, giving a description of the same, the names of the owners, praying the appointment of commissioners to ascertain the compensation to be made to the owner; requires notice to be given the parties interested ; that the court shall appoint five commissioners, any three or more of whom shall ascertain and certify the compensation to be made for the lands, also all damages that may accrue to the owners thereof by reason of the taking, making such allowances or deductions for real benefit or advantages which such owners may derive from the construction of the road.

Article V, section 48,of the constitution, or that part of the section upon which the demurrer is based, reads : “No right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made in money, or first secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law.”

We need not here discuss the right of eminent domain, or the right of private property. The former is an essential element of sovereignty, admitted to exist in all well organized governments, arising out of the very exigency of their organism ; the latter, a right having its origin in natural j nstice, lying back of and existing prior to any constitution. The provision of the constitution above quoted is merely declaratory of these rights, except so far as it contains an inhibition and makes mandatory the mode in which the right of eminent domain shall be exercised.

The inquiry presented by the demurrer is, whether the proceeding to condemn and appropriate the property of the appellants, in this instance, is compatible with a true and proper construction of the provision of the constitution above quoted.

"Words more fixed and well understood, language plainer, more unambiguous and mandatory in terms than used in the constitution, it seems to us, could not have been employed, and admit of a doubtful construction. It requires full compensation to be made to the owner of the lands, in money, before any corporation can enter or appropriate the same, and such compensation must be irrespective of any improvement proposed by such corporation, and that such compensation shall be ascertained by a jury of twelve men. How were these mandatory prerequisites of the constitution complied with in the proceedings to condemn the property in the case presented? In lieu of a jury of twelve men, the ascertainment and assessment of damages were made or attempted to be made by five commissioners appointed by the court for that purpose, in pursuance of the act above referred to ; and as to the compensation in money, to be made the owner of the lands condemned, before the right of entry could accrue to the appellees, the commissioners, in their report to the court (and which report is made part of the answer of the appellees) say: “ Taking into consideration the real benefit which such owners or parties interested would derive from the construction of said road, they ascertained and do hereby certify that no damages would accrue to said lands, or the owners thereof, in granting the right of way.” While the legislature may unquestionably prescribe the mode of procedure in the condemnation of a right of way, it is clearly not within their power to do so in such a way or manner as to impair or destroy the right. In the section of the act under consideration, in declaring that the enhanced value of the lands, by reason of the construction of the road, may be deducted from the real ascertained value of those to be appropriated, they attempt to do that indirectly which the constitution says shall not be done — the taking of the owner’s lands without full compensation being first made therefor in money. The payment or deposit of the assessed value of the lands, irrespective of any enhanced value, by reason of the appropriation, is a precedent condition to the right of entry, and without which the assessment and judgment of the court will not protect the corporation. There were no damages assessed in this case, for the reason, as clearly appears from the answer of the appellees, that the supposed increased value of the lands not appropriated was deducted from the real value of those condemned. Gould this be done, even though a jury of twelve men, as required by the constitution, had ascertained the damages? The court, in the case of Brown v. Beatty, 84 Miss., 241, where this question was presented, says: “The party, at the time of the assessment, was entitled to just compensation. * * No diversity can exist as to the true construction of the language of the bill of rights. He was entitled to the cash value of the land when the assessment was made. * * He was entitled to be paid in money. It was as clearly incompetent for the legislature to prescribe in what he should be paid, as to prescribe how much or how little he should receive. Manifestly, a party whose property has been taken and appropriated to public use, in the construction of a railroad, cannot be compelled to receive, as compensation, the estimated enhancement in the value of his remaining property. The cash value and the actual damage are the true standards by which to determine the compensation to which, in such cases, the party is entitled. We think, therefore, that the provision in the eighth section, by which the jury are directed in assessing the damages, when land is the subject, to take into the estimate as an offset to the claim of compensation, the benefit to the owner resulting from the location of the road upon his land, is invalid.”

Aside from the objection that the ascertainment of the damages was not had by a jury of twelve men, as a special cause relied, upon by the demurrer, the gist of the provision of the constitution, and of all proceedings had to condemn private property for public use is, that compensation shall be first made to the owner before the right of entry can accrue. Martin et al. ex parte, 13 Ark., 198; Memphis and Charleston Railway Co. v. Payne, 37 Miss., 700; McAuley v. Western Vermont Railway Co., 33 Vt., 311; Henry v. Dubuque and. Pacific Railway Co., 10 Iowa, 540; Burns v. Dodge, 9 Wis., 458; Evans v. Hœfner, 29 Mo., 141. We have seen that no such compensation was made in this case. It will not do to say that the appellants had notice of the proceedings and should have appeared and defended their interest before the commissioners, or in the court rendering the judgment of condemnation. In proceedings of this character, in contemplation of the constitution, every step is taken at the instance and at the peril of the corporation. There is nothing in the section of the act under which these proceedings were had that makes it obligatory upon the landowner to appear and contest. On the contrary, the judgment of the court, in condemning the property, is made conclusive, without an appeal being prescribed. In such case the owner may remain silent until compensation is made, and until such compensation, no right of way is obtained. St. Joseph and Denver City R. R. Co. v. Orr, 8 Kan., 419; Gulf R. R. Co. v. Owen, id., 418-19.

We do not wish to be understood, however, as saying that where there is no constitutional objection to the mode of procedure and the right of appeal is given, that the legislature has not the power to require the landowner to appear and contest or be barred from other remedy or action.

From the foregoing we conclude that the proceedings in this case, to condemn the right of way under the 23d section of the act aforesaid, were in conflict with the 48th section of the fifth article of the constitution, and that the demurrer was well taken to the answer and should have been sustained.

The judgment of the circuit court of Phillips county in overruling the demurrer is reversed and the cause remanded.

Stephenson, J., being disqualified, did not sit in this case.


author: Farrelly, Sp. J.

text:
    Edwards et al. vs. Cooper.
    Attachments; Special and general writs of — Act of December 28,1860, construed.

    The lessor brought suit by attachment, under the act approved December 28,1860, to enforce his specific lien against property mentioned in written articles of lease — he filed the affidavit required by that act, but instead of the bond required by said act, he filed the general attachment bond; the clerk issued a general writ of.attachment( which was levied upon the general property of the defendant. On motion to quash the writ; Reid, that the plaintiff having failed, in the first instance, to file the bond required by the special act to entitl e him to the enforcement of his lien upon the specific property, and, in the second, having failed to file such affidavit as would authorize the issuance of a general writ of attachment, he was entitled to neither, and the writ should be quashed.
    APPEAL from Phillips Circuit Court. ,
    Hon. M. L. Stephenson, Circuit Judge.

      Palmer & Sanders, for appellants.

      A. H. Garland, for appellee.
   Farrelly, Sp. J.

On tbe 14tb day of February, 1870, Cooper, by contract in writing, leased a certain plantation in Phillips county to Edwards for the term of two years, or until the 1st day of January, 1872, at the annual rent of one hundred and sixteen bales of cotton, weighing four hundred pounds each, and to be the first delivered to the said Edwards by his lessees or gathered by himself. On the 3d day of November, 1870, Cooper brought suit, by attachment against Edwards to enforce his landlord’s lien. The suit was brought under the act of December 28,1860, and the plaintiff filed the affidavit required by that act. The clerk, instead of issuing a specific or special writ, issued a general writ of attachment which was levied upon the general property of the defendant, who gave the following bond and retained possession of the property: “We undertake and are bound unto plaintiff, Duncan B. Cooper, in the sum of seventeen hundred dollars, that the defendant, T. M. Edwards, will perform the judgment of the court upon the following property of the defendant attached in this action, to-wit: (the property attached here described), the said property being of the aggregate appraised value of $797.50.” This bond is .not a literal compliance with the bond required by section 234 or 242 of the code of civil practice. At the May term, 1871, of the court, the defendant appeared and filed a motion to quash the writ of attachment, on the ground that the writ issued was the general writ of attachment, and the complaint and affidavit were for the specific attachment authorized by the act of 1860. The court took the motion under advisement, and at the November term, 1872, overruled the same,- to which the defendant excepted at the time. On the following day, the defendant being called and failing to answer, the court rendered judgment against him for the sum of $7,424, and against his securities in the aforesaid bond for the sum of $797.50, being the appraised value of the property attached. On the second day thereafter, defendant’s counsel filed a motion, supported by affidavit, to set aside the j udgment and for time to plead. The court overruled the motion, and the defendant excepted. Thereupon the defendant filed a motion for a new trial, which tbe court overruled; defendant excepted and prayed an appeal, which was granted. The grounds for a new trial, as set forth in the motion, are as follows:

First. The court erred in overruling the motion of the defendant to quash the writ of attachment issued in this case.

Second. The court overruled the motion of defendant to set aside the judgment nildicit, and allow him time to plead.

Third. Because the court in the trial of said cause did not state in writing the conclusions of fact found separately from the conclusions of law.

Fourth. Because the judgment is contrary to the law and the evidence. •

Fifth. The verdict of the court is contrary to the law and the evidence.

We proceed to consider the ruling of the court upon 'the motion to quash the writ of attachment.

This suit, as above stated, was brought under the act of December 28, 1860, the first section of which, in substance, declares that a landlord who has a lien on the crop for rent may have a writ of attachment for the recovery of the same, whether the rent be due or not, in certain cases therein specified; and the second section of which reads: “Before such writ of attachment shall issue, the landlord * * shall make and file an affidavit of one of the above facts, that the amount claimed (which shall be therein stated) is or will be due for rent, or will be the value of the portion of the crop agreed to be received as rent, stating the time when the same became due, and that he has a lien on such crop for such rent; and he shall file with the clerk * * a bond to the defendant, with sufficient security, in double the amount of his claim, as sworn to, conditioned that he will prove his debt or demand and his lien in a trial at law, or that he will pay such damages as shall be adjudged against him.”

This act is amendatory of chapter 100 of Gould’s Digest, under the head of landlord and tenant, and is intended to afford a special remedy in a particular class of contracts; it confers a peculiar and valuable privilege upon the landlord, in giving him a more 'effectual and specific remedy in enforcing his demands against his tenant. The proceeding by attachment is in derogation of common law, and, whether general or special, as in this instance, a party resorting to its aid, or availing himself of the privilege it confers, must strictly comply with the provisions of the statute, and more especially and particularly in all such requirements as are prerequisites to the issuance of the writ. Some one of the causes specified in the act must be shown to exist at the time as a ground for bringing the suit; the affidavit and a bond conditioned as prescribed by the act must be filed as indispensable prerequisites before the writ of attachment is issued.

In the case presented by the record, the complaint and affidavits conform to the requirements of the above act, and show upon their face that the plaintiff sought to avail himself of the specific remedy afforded by this act to enforce his specific lien and demand reserved in the written articles of lease against the particular property therein named, in kind, quantity and value. The condition of the bond required to be filed by this act before the writ of attachment should issue is, that the plaintiff “will prove his debt on demand and his lien in a trial at law, or that he will pay such damages as shall be adjudged against him.” The bond filed is the general attachment bond required by section 219 of the code, which reads, “that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment if the order is wrongfully obtained.”

This bond is neither in form nor substance the bond required to be filed by the act under which the plaintiff commenced his proceeding. The obligation is not in double the amount sworn to in the affidavit, nor in any specified amount, nor is it conditioned that the plaintiff will prove his lien, as required by the act. It is clear, therefore, that he was not entitled to a writ of attachment, to be levied upon the specific property upon which a lien' was retained by the written articles of lease, and to enforce which he brought his suit. Under this state of the case, was he entitled to the general writ of attachment, to be levied upon the general property of the defendant, as was done in this case? To authorize the issuance of the general writ and a levy upon the general property of the defendant, it should appear from the affidavit that some one of the grounds enumerated in the statute existed; that the claim was just, etc. The affidavit filed in this case contains no such statement, makes no such showing as required by the statute to authorize the issuance of a general writ of attachment, and we conclude, therefore, that inasmuch as the plaintiff, in the first instance, failed to file the bond required by the special act to entitle him to the enforcement of his lien upon the specific property; and, in the second, failed to file such affidavit as would authorize the issuance of a general writ of attachment to be levied upon the general property of the defendant, he was entitled to neither, and the court should-have sustained the motion to quash.

Holding, as we do, that the writ should have been quashed for the reason that an essential prerequisite, the filing of such a bond as the act required, was not complied with, and that the writ issued was at variance with the essential prerequisites of the act, and did not come within its purview, the judgment and verdict — in fact the whole proceedings — were affected thereby, and must necessarily fall. Such being the case, we do not deem it necessary to discuss the effect of the bond required by sections 234 or 242 of the civil code, or feel called upon to consider separately or more particularly the other causes named in the motion-for a new trial.

The judgment of the circuit court of Phillips county overruling the motion to quash the writ of attachment is reversed, and the cause remanded with instructions to quash the entire proceedings.

Stephenson, J., being disqualified, did not sit in this case.


text:
    Snow ex parte.
    Yenue. When affidavit for change of, presumed waived.

    Where a party would be entitled, under the statute, to a change of venue, upon making application in conformity to the requirments of the statute, and an order of record is entered by agreement and consent of the parties changing the venue, this court will presume the application required by the statute was made or offered to be made, and all objections thereto were waived.
    PETITION for Mandamus.

      U. M. Rose, for petitioner.
   Farrelly, Sp. J.

The petitioner alleges that he sued Andrew J. Cox, in the Carroll county circuit court. The defendant appeared and, on application alleging that the minds of the inhabitants of that county were prejudiced against him, the venue was changed to Boone county. In the Boone circuit court, the defendant again made application for a change of venue, on the ground that the judge of that court would not give him a fair and impartial trial, and the venue was changed to Washington county. When the cause came on for trial in Washington circuit court, by consent and agreement of the parties to that effect, the court considered and ordered that the cause be transferred back to Carroll county for trial. That all the original papers and all the records and proceedings had, in the cause, in the Washington circuit court, were, in obedience to the last mentioned order, filed in the Carroll county circuit court and the cause there docketed for trial. That the regular judge being disqualified, by reason of haying been of counsel in the cause, in pursuance of law, a special judge was chosen to preside; wheretqjon, the defendant appeared and moved to dismiss the case, and to strike the same from the files of the court for want of jurisdiction, which motion was sustained by the court. Petitioner again appeared before the Washington circuit court and moved the court to docket said cause and proceed to trial therein, but the defendant objected to said court taking jurisdiction, and the court sustained the objection, considering that it had been divested of its jurisdiction by the last mentioned change of venue to the Carroll circuit court.

Petitioner now asks this court for a writ of mandamus, requiring the judge of the circuit court of Carroll county, in this cause presiding, to hear and determine the same.

It is not questioned, and if it were, it seems clear from the petition, that the applicant has brought his case within the rule of decision of this court, repeatedly announced, that a party to be entitled to a writ of mandamus must show, by his petition, that he has a clear legal right, and that he has no other adequate remedy. The statement of this case clearly shows, nor is it controverted, that the circuit court of Carroll county, in which the suit was originally brought, had jurisdiction, both of the subject matter of the suit and of the parties thereto. It is equally clear that the circuit court of Washington county acquired jurisdiction, on change of venue, to hear and determine the cause. Both courts now refuse to take cognizance of the case, on the ground that each has been ousted of its jurisdiction by the changes of venue between the respective counties: and we have the remarkable novelty presented, in this case, of a party to a suit in court, wandering about the country from year to year, from county to county, and from court to court, asking an adjudication upon his rights, in courts professedly admitting their jurisdiction, at one time or another, but as often closing their doors and denying him a hearing. That injustice may not be done, and that the administration of the law may not prove a failure, it is evident that the petitioner is entitled to have his case passed upon in some court, and it is equally evident, that either the Carroll or the Washington circuit court have jurisdiction to hear and determine the same.

The only question, then, for our consideration is, Did the last mentioned change of venue from the Washington circuit court reinvest the circuit court of Carroll county with jurisdiction in the cause?

The statute in force at the time, allowing a change of venue in a cause under a certain state of facts, and upon compliance with certain prerequisites, conferred a privilege, of which a party might avail himself or waive at his pleasure. The reason of the law was plain — that j ustice may be obtained — that the party might .have a fair and impartial trial. It was a privilege a party might insist upon, and when the application was made in conformity to the statute, the court had no discretion in the matter.

In this case the change of venue from the Washington circuit court was had by agreement and consent of the parties. Could the defendant, then, be heard to object in the Carroll circuit court, to which the case has been transferred ?

In the case of The People v. Scates, 3 Scammon (Ills.), 354, the relator was indicted for murder in the second judicial cir-cu.it, and after arraignment and plea of not guilty, moved the court for a change of venue to a county in the third judicial circuit; the state’s attorney consented to the change, and an order changing the venue by consent was entered of record. When the cause came on for trial in the third judicial circuit, the state’s attorney moved to dismiss for the want of jurisdiction, on the grounds that no application, as required by the statute, had been made to change the venue, and that consent could not give jurisdiction. The court, in considering these questions, say: “ What is the effect of this consent by the state’s attorney? The application is made by the prisoner for a privilege, which, under a certain state of facts, if presented by petition and affidavit, the court must grant, having no discretion to refuse it. Does not the consent of the state’s attorney operate as a waiver of the petition and affidavit ? Is it not an admission by him, and thus information to the court, that the facts do exist, which could authorize a change ? Is it anything more than dispensing by him, with prerequisites which he might insist on ? * * It is not perceived there is any difference in the principles applicable to a change of venue in civil and in criminal cases; in both certain facts must be made known to the court before a change can be had; yet, it is the constant practice on the circuit to waive the performance of all the requirements of the statute and consent to a change to a county mutually agreed upon by the parties. * * Objections to a change of venue, if there be any, should be made and served in the court where the application is made, and if a change is improperly allowed, it can be assigned as error by the party prejudiced thereby. The court to which a cause is sent, is not a court to review and reverse the orders and decisions of the court making the order or decision — it has no right to inquire into the regularity of the order.”

Under the statute in force at the time the proceedings were transferred to the Carroll circuit court, the defendant having already availed himself of his privilege under it, and the plaintiff not having had a change of venue, and being entitled to one on making application in conformity to the requirements of the statute, and an order of record having been entered in the Washington circuit court, by agreement and consent of the parties, changing the venue to the Carroll circuit court, we may presume the plaintiff made or offered to make the application as required by the statute, and the defendant waived the same; and applying the rule as laid down in the decision above quoted, we think the defendant ought not to have been heard to object to the jurisdiction of the Carroll circuit court.

We are of opinion, therefore, that a writ of mandamus should be awarded to the judge of the Carroll county circuit court, to take jurisdiction and proceed to hear and determine this cause.

Mandamus is awarded.

Gregg, J., being disqualified, did not sit in this case.


author: Searle, J.

text:
    Smith et al. vs. Egner.
    Circuit Clerks : Acts authorizing judgment by, repealed.

    The act, approved April 24,1873, “ to amend the code of practice in civil cases,” repeals and renders ineffectual the several provisions of the amended code, authorizing judgments in vacation before the circuit clerks.
    APPEAL from Independence Circuit Court.
    Hon. J. W. Butler, Circuit Judge.

      A. H. Garland, for appellants.

      Rose & Green, for appellee.
   Searle, J.

The complaint in this case was filed on the 14th day of May, 1873, in the Independence circuit court, and alleged as the cause of action a debt due the plaintiff, as evidenced by a promissory note. A summons was issued against the defendants, served upon two of them, namely, Smith and ■Byers, on the 16th and 17th of May, by delivery of copies to them respectively, and served upon the defendant Archer by “delivery of a copy to his wife on the 20th of May.” At the June term following, Smith, having appeared for that purpose alone, moved to quash the summons, on the following grounds:

“1. Because the defendants were not therein summoned to appear at the present or any other term of this court.
“ 2. Because the said summons is in many other respects defective and bad.”

The court overruled the motion, and, Smith refusing to plead or answer further, rendered judgment against the defendants by default, from which Smith appealed.

The summons was issued under the amended 62d section of the civil code. The action being upon a contract for the recovery of money only, as provided in the proviso of said section, it was inserted in the summons, as follows: “And that the plaintiff will take judgment for the sum of two thousand two hundred and twenty-four dollars, with interest at the rate of ten per cent, from the 1st of May, 1871, if the defendants fail to answer the complaint in twenty days after service of this summons.”

When the complaint was filed and summons issued, it was doubtless intended by the plaintiff to enforce the payment of his debt under the proviso of the amended section 411 of the civil code (page 230, acts of 1873). This proviso is so incomplete that it is clearly a nullity. Nor is the amended section 411 of the civil code as enacted in 1871 (see page 239, acts of 1871), in force, as that is repealed by the enactment of this. See the general amending provision immediately following the enacting clause of “ an act to amend the code of practice in civil cases,” page 214, acts of 1873. Hence, the several provisions of the amended codes, authorizing judgments in vacation before the circuit clerk are no longer effectual.. The plaintiff, however, did not proceed under section 411 of the act of 1873, and take judgment in vacation; but the judgment was rendered by the court as upon default at the June term, 1873, on the 24th day of June.

The question is, Was the summons and the execution thereof upon the appellant Smith, sufficient notice to him to authorize the court to render judgment by default? 1st. The summons should state the names of the parties to the action. Here the summons commands the sheriff “to summon William Byers, Henry Smith and Henry Archer to answer complaint filed against them in the Independence circuit court by William Egner,” etc. This is a sufficient designation of the names of the parties. Elliott v. Hart, 7 How. Pr., 25; Blanchard v. Strait, 8 id., 83. 2d. The summons should give the general nature of the action. Here it is stated that the plaintiff proposed to take judgment “for two thousand two hundred and thirty-four dollars due” him. This sufficiently apprised the appellant of the nature of the action. 3d. The summons should state the name of the court in which the suit is brought. Though this is not expressly required by the code, yet it must be inferred by implication therefrom, to be necessary. This it did by denominating it the Independence circuit court. 4th. The summons should state the time when the defendant must appear and plead. Here it is made returnable . “on the first day of the next June term of said (Independence circuit) court.” This was the time fixed by law when it should have been made returnable (see amended sec. 62 of the code), and the time when the appellant should have appeared and pleaded. Notwithstanding the informality of the summons, it substantially complies with the law, and the circuit court very properly refused to quash it.

No complaint is made as to the manner in which the summons was served upon this appellant.

As to Byers and Archer, the other defendants in the court below, we must presume there was no error, for they have not appealed. And whatever is done here with the judgment of that court can affect none but the appellant. Ricketson v. Ricketson et al., 26 Cal., 149; Newton v. Baylis et al., 33 id., 129; Gerard et al. v. Stagg, 10 How. Pr., 369.

Finding no error, the judgment of the court below must be affirmed as against Smith, with costs.


author: Gvregkí, J.

text:
    Johnson et al. vs. Williams.
    Appeals : To whom not allowed after judgment.

    A third person, or one who was not a party to the suit, will not be permitted, after Únal judgment rendered, to come in and he made a party in order that he may prosecute an appeal.
    APPEAL from Sebastian Circuit Court.
    Hon. E. D. Ham, Circuit Judge.

      A. H. Garland, for appellants.

      Ben. T. Duval, for appellee.
   Gvregkí, J.

On the 16th of September, 1873, the appellants filed their petition in the Sebastian circuit court, setting up, through a next friend, that they are minor heirs of Charles B. Johnson, deceased; that their father died leaving property more than sufficient to pay his debts ; that their mother was appointed administratrix of his estate; that on the 9th of May, 1871, the administrator of the estate of Marcellus Duval obtained the allowance of a claim, in the proper probate court, against their father’s estate for $6,737.50; that the same was ordered paid and classed in the fifth class of demands; that on the 10th day of September, 1873, appellants, by their next friend, applied by petition and affidavit to the clerk of the court for an appeal, and tendered him all costs, etc.; but that he refused to grant such appeal and to make out and file a transcript, etc.; that appellants are advised that said order of allowance is erroneous, fraudulent and unjust, and ought to be reversed, and they prayed that a mandamus issue against the clerk, compelling him to furnish a transcript, etc.

The appellee appeared in court and admitted the truth of all the facts stated in the petition, and submitted to the court whether or not he should be required to allow said appeal, etc. Whereupon the court found against the appellants and dismissed their petition, and they appealed to this court.

In the matter of the claim of Duval’s estate against Johnson’s estate before the court of probate, these appellants were not parties, and there was no judgment rendered against them ard consequently there was nothing for them to appeal from. When a case is heard and a final judgment rendered, it is too late for third persons to come in and ask to be made parties that they may prosecute an appeal, and especially so, where they show no right to the thing in action or to its immediate use or control.

If the administratrix was mismanaging or wasting the estate, she was liable upon her official bond, or if collusion and fraud were had in the allowance of this claim, the heirs could have filed their bill in the proper court, and had such allowance held for naught.

If the allowance was unjust, the administratrix should have appealed ; if she refused to do so, the heirs could have proceeded directly against her. Administration might be greatly embarrassed if every one who may have a remote interest in the proceeds of an estate could come into the courts and control and carry on litigation without the consent and against the will of the proper representative of the deceased.

The court did not err in refusing the mandamus, and its judgment is affirmed.


text:
    Moore vs. The State.
    Bail Bond : Liability of sureties on forfeiture, eta.

    Burke was indicted, brought into court and pleaded to the indictment; order of court that sheriff admit to bail on giving bond with sureties ior appearance at next term; bond and sureties given, each snrety binding himself in one-half the amount of bail; de- „ fendant appeared at next term of court, and cause continued on motion of the state; he failed to appear at succeeding term and his bond was forfeited. On suit on forfeited bond: Held, 1st That the sheriff had authority to admit to bail. 2d. That where the amount secured was equal, in the aggregate, to the penalty of the bond, the fact that the liability of the sureties was limited to one-half each, did not vitiate the bond. 3d. That the principal recognizor was bound to appear not only to the term mentioned in the recognizance, but to each succeeding'lerm thereafter, until acquitted or discharged by leave of court, or convicted and sentenced.
    APPEAL from Desha Circuit Court.
    Hon. M.-L. Stephnson, Circuit Judge.

      Pindalls, for appellant.

      J. R. Montgomery, Attorney General, for appellee.
   Compton, Sp. J.

This was an action against Benjamin E. Moore on a forfeited bail bond. At the trial in the court below, the issues were, by consent, submitted to the court sitting without a jury,.and upon the evidence adduced, judgment was rendered against the defendant for $500, to reverse which the appeal in this case is prosecuted.

The evidence, as set out in the bill of exceptions, establishes the following facts : Isham Y. Burke was indicted at the fall term, 1869, of the Desha circuit court, for an assault with intent to kill; a bench warrant was issued to the sheriff, on which Burke was arrested and brought into court on the 29th day of October, 1869, at which time he pleaded to the indictment, and the court made an order which was entered of record, directing that he should be admitted to bail in the sum of $1,000 with security to be approved by the sheriff, and then adjourned until court in course, -leaving Burke under arrest and in custody of the sheriff; afterward, on the 30th day of October,. 1869, Burke was released from custody, by reason of his having entered into the bond on which the action in this case is founded, and which is in the words and figures following:

“ Know all men by these presents, that we, Isham Y. Burke, as principal, and Samuel R. Moore and Benjamin E. Moore, as securities, are held and firmly bound unto the state of Arkansas, in the full sum of one thousand dollars, for the payment whereof well and truly to be made, we bind ourselves, our heirs and executors firmly by these presents, as witness our hands and seals, at Napoleon, Desha county, Arkansas, on this 30th day of October, 1869. The condition of the above obligation is such, that whereas, the above bound Isham Y. Burke was indicted by the grand jury of said county of Desha for an assault with intent to kill; now, if the said I. Y. B. shall be and appear at the spring term of the Desha circuit court, to be holden at the court house of said county, on the-day of April, 1870, and answer said charge, and not thence depart without leave of court, then this obligation to be null and void,- otherwise to be and remain in full force and virtue. I. V. Burke. [Seal.]
“ I sign the above obligation to the amount of $500.
“ S. R. Moore. [Seal.]
I sign the above obligation to the amount of $500.
“ B. E. Moore. [Seal.] ”

At the spring term, Burke appeared, and, on motion of the state, the case was continued ; at the next term thereafter, he failed to appear, and his bond was forfeited.

It is insisted, that in as much as Burke was before the court on the bench warrant, and the court adjourned leaving him under arrest, the sheriff had no authority in law to take the bond sued on and release him from custody, notwithstanding the order of the court, that he should be so admitted to bail. This objection is not well taken; see Pinson et al. v. The State, ante, p. 397, where the same question was raised and decided.

It is next insisted that the bond is invald, because it was not executed for the amount, or in the manner required by the order of the court, in this: That the undertaking is not the joint bond of the appellant and Samuel R. Moore for $1,000, but is the separate bond of each for half that sum. There is nothing in the objection. The amount secured was equal, in the aggregate, to the penalty of the bond, and the fact that the liability of the sureties was limited to $500 each, did not vitiate the bond.

It is also insisted that according to the condition of the bond, Burke was not bound to appear at the fall term, 1870, and that his failure to do so did not warrant a forfeiture of the bond. The reverse of this was decided to be the law in Gentry v. The State, 22 Ark., 544. This court, remarking in that case, upon the condition of a recognizance similar in terms to the condition of the bond in this case, said that “ the principal recognizor was bound to appear, not only at the term mentioned in the recognizance, but at each succeeding term thereafter until acquitted, or otherwise legally discharged, or if found guilty, until sentence was passed on him, if not permitted to depart sooner by leave of the court.”

Let the judgment be affirmed in all things with costs.

Stephenson, J., being disqualified, did not sit in this case.


text:
    Porter et al. vs. Singleton.
    Supersedeas Bond: Liability of sureties.

    Singleton sued Neal and two others; judgment against, defendants. Appeal to this court with supersedeas bond; judgment affirmed as to the two, and set aside as to Neal for the want of service. Suit on supersedeas bond and plea by sureties that the judgment was not affirmed. Held, that Neal, not having been served with process, was not prejudiced by the judgment and could not prosecute the appeal, and that on affirmance of the judgment as to the two, the sureties became liable.
    APPEAL from Phillips Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.

      Palmer & Sanders, for appellants.

      Pindalls, for appellee.
   Compton, Sp. J.

In this case, Singleton recovered judgment in the Phillips circuit court, against Porter and Underwood, on a supersedeas bond executed by them, on appeal to this court, in the case of Neal et al. v. Singleton, 26 Ark, 491, from which judgment Porter and Underwood appealed.

The bond recites that, “Whereas, the appellants, I. Stutt Neal, Rube E. Neal and John S. Woolfolk are about to take an appeal from tbe judgment of tbe Desba circuit court, rendered at tbe October term, 1869, against them, in favor of tbe appellee, John P. Singleton, for the sum of fifteen hundred dollars and costs, and the appellant desires to supersede said judgment; now Edward Porter and Q. K. Underwood, sureties, covenant with the said • appellee that the said appellant will pay to the appellee, all costs and damages that may be adjudged against the appellants on the appeal; and also, that they will satisfy and perform said judgment in case it shall be affirmed,” etc.

It is urged for the appellants that the judgment referred to, was not affirmed; and that, therefore, they are not liable on the bond. The mandate of this court, which was read in evidence on the trial in the court below, contains the following language: “ The court is of opinion that there is no error in the proceedings and judgment of said circuit court in this cause ; it is therefore considered by the court that the judgment of said circuit court in this cause rendered, be and the same is hereby, in all things affirmed with costs, as to I. Stutt Neal and John S. Woolfolk,” saying nothing as to Rube E. Neal, in regard to whom, it is insisted, there should also have been an affirmance. But, considering the mandate, as we must, with reference to the principles announced in the opinion of the court preceding it (Watson v. Avery, 8 Bush., 641), we find that the judgment appealed from in Neal et al. v. Singleton, supra, was decided to be a judgment against I. Stutt Neal and Woolfolk only, and not against Rube E. Neal, who, though sued, was not served with process and- did not appear to the action. In that case the chief justice said : The next question arising is, Chn Rube E. Neal be heard as to any matter appearing in this record? We are of opinion that the right to relief by appeal from a final judgment exists only in favor of the parties whose substantial rights have been prejudiced by the judgment appealed from (3 Met., 72). We have-already said that Rube E. Neal was not legally summoned before the court; it follows, therefore, that there is no legal judgment, and there can be no legal judgment rendered against him by the court below. This being true, his substantial rights are not prejudiced by the judgment, and it follows that he cannot prosecute this appeal.”

The court then proceeded to examine the questions arising as to I. Stutt Neal and Woolfolk, and finding nothing in the record, “that would warrant a reversal,” affirmed the judgment. Thus it clearly appears that the judgment of the circuit court, in Neal et al. v. Singleton, was affirmed; and the liability of the appellants in the case, now before us, follows as a consequence.

And it appearing that the judgment of the court below has been superseded, the same is affirmed with costs and ten per cent, damages, and it is ordered that a judgment be entered in this court, on the supersedeas bond, against Arthur Thompson and C. Polk, the sureties in said bond, for the amount due on said judgment, with the costs and damages aforesaid and that the same be certified to the court below to be carried into effect.

Stephenson, J., being disqualified, did not sit in this case.


author: McClure, C. J.

text:
    Norris et al vs. Kidd.
    Homestead : Claim of, must be asserted btfore sale, etc.

    Smith, a married man and the head of a family, without having selected or appropriated the same for a homestead under the act of March 28,1871, owned and occupied the house and lot in question. (and no other real estate) at the time of the rendition of the judgment and the sale of the same on execution; and was present at the sale, and notified the sheriff and the bidders that he claimed the property as his homestead. On ejectment brought by the purchaser, and plea of general issue by defendant: Reid, that a failure or neglect to select the homestead in the manner pointed out by law amounts to a waiver of the right; and having been neglected, a debtor cannot assert it in an action of ejectment; that the exemption, if intended to be claimed, must be asserted before the sale,. and a debtor cannot prevent the sale of his homestead by simply telling the sheriff and bidders, at the sale, that he claims the property as his homestead.
    APPEAL from Drew Circuit Court.
    Hon. John A. Williams, Special Judge.

      A. H. Garland, for appellants.
   McClure, C. J.

On the lltb of April, 1872, Eorest B. Smith was the owner, in fee, of a one undivided half of a town lot in the town of Montieello. On the day above named, Edmund R. Norris, Levi E. Taylor and James N. Norris recovered a judgment against Smith ; and on the 24th of June, 1872, the house and lot were sold on execution to satisfy said judgment, and purchased by the execution creditor. The property not being redeemed from sale in July of 1873, the sheriff made a deed to the purchasers for the property now in dispute.

It appears from the agreed 'statement of facts that at the time of the rendition of the judgment, and at the time of the sale on execution, Smith, who is a married man and the head of a family, was living in the two upper rooms of said house, find that the lower room was occupied as a drinking saloon; that Smith was not the owner of any other real estate than the house and lot in question; that on the day of sale, Smith was present and announced to the sheriff and to the bidders that he claimed the premises as his homestead, and forbid the sale, and that Smith did not file a claim in writing under the act of March 28, 1871. In June of 1873, Smith, being in possession of the premises, rented the same to one Robert A. Kidd, who went into possession. In July following the appellants commenced an action of ejectment against Kidd, who pleaded the general issue, and the cause was submitted to the court, sitting as a jury, upon an agreed statement of facts. The finding was for the defendant. A motion for a new trial was made and overruled, and an appeal granted to this court.

■ The facts stated, the question is, What is the law applicable to the case ? Every resident of this state who is a married man or the head of a family is entitled to a homestead, exempt from sale on execution, or any other final .process from any court, except as against certain debts specifically mentioned in article twelve of the constitution.

The first question arising in this ease is, Does mere occupancy hy a resident, who is a married man or the head of a family, amount to an appropriation of the property occupied as a homestead? In the case of Cook v. McChristian, 4 Cal., 23, it was held that it did ; but that decision is based upon the ground that the statute did not provide any mode by which the claimant could express an intention to dedicate the property as a homestead. Such, however, is not the case in this state, and the reason for the rule not existing, the case cited cannot be regarded as an authority.

The homestead right of the resident is created by article twelve of the constitution, and, like the homestead act of California, it fails to provide the manner and mode of its selection. While the rule adopted in the case just cited might have been applicable to the state of affairs existing in this state prior to the act of March 28, 1871, it can have no application now.

The exemption provided by our constitution simply confers on a resident a personal privilege, which may be insisted upon or waived at his option. It forces no privilege upon him, nor does it compel him to withhold the appropriation of his property from the satisfaction of his debts. Chamberlain v. Lyell, 3 Mich., 457; Slaughter v. Detiney, 10 Ind., 104.

The provision of our constitution on the subject of home-steady while its general features are in some respects the same, is unlike the exemption law found in Gould’s Digest, in this, that the statute no where provides how it shall be selected, who shall select it, or. to whom the application shall be made. And the conclusion that may be reached in the case, for the reasons stated, cannot be regarded as overruling Tumlinson v. Sweeney, 22 Ark., 400, or those following it under the homestead act of December 8, 1852. In the case alluded to, the court was not passing on a question of law, but was determining whether there was any evidence to sustain the finding of a jury, that the defendant had a residence on certain lands at the time of the sale on execution. This court said there was evidence to sustain the finding, and affirmed the judgment. Whether it was the debtor’s duty to enjoin the sale, was not presented to or passed upon by the court.

Our present constitution says the homestead is to be “selected by the owner; ” but how, when, and to whom he shall make application to select it, is not therein provided. The legislature, as it has the unquestioned power to do, has pointed out how, when, and to whom the application to select shall be made. Erom a reading of the old law, as found in Gould’s Digest, the mind is left in doubt as to whether the court shall set off a homestead to a judgment debtor, or whether he is to select it himself. The constitution does away with all ambiguity, and designates by whom the right of selection shall be exercised, and the legislature having pointed out the method of selecting, we say that the ruling of those states where no such provision is made can have little or no weight in determining the law of this case.

The question of waiving the benefit of an exemption was discussed in the case of Kneetle v. Newcomb, 22 N. Y., 249. In the case alluded to, Kneetle executed his note, in which he states, “I hereby waive and relinquish all right of exemption of any property I may have from execution on this debt.” The question as to whether this was a waiver of the exemption laws of the state was submitted to the court of appeals of New York, and it said that “A person contracting a debt cannot agree with the creditor that, in case of nonpayment, he shall be entitled to levy his execution upon property exempt by the general law of a state. * * One object of municipal law is to promote the general welfare of society. The exemption laws seek to accomplish this, by taking from the head of a family the power to deprive it of certain property by contracting debts which shall enable creditors to take such property on execution. The parties to this contract sought to set aside those laws, so far as this debt was concerned. This they cannot do. Parties, by their contracts, cannot give any other effect to judgments and executions than that which the law attributes to them. In these cases, the law seeks to mitigate the consequences of men’s thoughtlessness and improvidence ; and it does not allow its policy to be evaded by any language which may be inserted in the contract.”

In the case of Chickering v. Greenleaf, 6 N. H., 51, the payer of a note, at a time when he was liable to be imprisoned for debt, stipulated that he should be “ exempted from arrest by virtue of any process of law founded on this note.” The exemption in this case, as will be observed, was for the benefit of the debtor, while in the case of Kneetle v. Newcomb, supra, it was for the benefit of the creditor, and the supreme court of New Hampshire held that such an exemption might be the subject of contract, and that tbe debtor could not be imprisoned. In the case of Elmore v. Higgins, 20 Iowa, 250, the debtor stipulated, at the time of executing the note and mortgage, that the creditor should be confined to the mortgaged property for the payment of the debt, and the supreme court of Iowa held that the maker of the note could not be held responsible beyond the proceeds of the mortgaged property. In a case decided at the present term of this court (Richardson, Ex’r, v. Thomas, ante, p. 387), a debtor limited the creditor to the mortgaged property, and this court held that the other property of the debtor could not be seized and applied to the payment of any balance that might be due after the sale of the land described in the mortgage.

In the case of Kneetle v Newcomb, 22 N. Y., 250, the court say: “ One may turn out his last cow on execution, or may release an equity of redemption, and he will be bound by the act.” Just why it is that a debtor may waive an exemption after judgment and not before is not stated in any of the authorities ; but all of them agree that the debtor may waive it after judgment, and that a.nonassertion of the right given by statute until aEter sale amounts to a waiver. Kneetle v. Newcomb, 22 N. Y., 155; State v. Melange, 9 Ind., 198; Sullivan v. Winslow, 22 id., 155.

Whether this distinction arises out of the fact that the debtor is better able to judge of the extent of the inconvenience and deprivation he will suffer by parting with his property when the sheriff is at his door with an execution, than he was at the time he created the debt; or whether an agreement to waive the benefits of an exemption law is such an agreement that a refusal to comply with it could not be asserted or enforced in the courts, on the grounds that the law forbids the making of such a contract, is not well settled. The true reason and the proper distinction, we apprehend, is found in the fact that there is no inhibition on the creditor waiving a portion of his execution rights; while in the case of the debtor, the law, for the purpose of protecting him from oppression, and upon humanitarian grounds, declares he shall not be reduced to absolute want, or become a public burthen simply to satisfy the greed and avarice of his creditor. In the one case there is no waiving of a statutory benefit enacted to promote the general welfare and comfort of the citizen, and prevent the suffering consequent to a state of poverty, while in the other there is.

Mere occupancy, we have said, does not constitute or give the property the character of a homestead; because a debtor may allow the homestead to be sold, and the fact that he lived in it at the time of the rendition of the judgment and sale on execution, since the passage of the act of March 28,1871, does not appropriate it as a homestead. The homestead given a debtor by our constitution is “to be selected by the owner thereof.” This language clearly shows that he was not to be endowed with the house and lot on which the debtor resided, but that he was to have a homestead upon any lands or town lots owned by him, wherever he might select it. After the selection has been made, occupancy is necessary to give it the character of a homestead.

In the case at bar, Smith owned and occupied the property in dispute at the time of the rendition of the judgment and sale on execution, and was present at the sale and notified the sheriff and bidders that he claimed the property as his homestead. The law having pointed out a method how the homestead should be selected, the question arises, whether it can be selected in any other manner, and whether a disregard of the statute does not amount to a waiver of the right. The act of March 28, 1871, says, whenever any resident desires to claim any of the exemptions provided in article twelve of the constitution, he shall prepare a schedule, verified by affidavit, of the property which he claims as exempted under the provisions of said constitution, and shall file the same, if such execution or other final process shall have been issued by any court of record in the office of the clerk of such court, and said clerk shall thereupon issue a supersedeas staying any sale under such execution.

In'the case of Tumlinson v. Sweeney, 22 Ark., 400, this court affirmed a judgment where a debtor claimed his exemption on the day of sale, but it must be borne in mind that, at the time of the rendition of that opinion, the law did not provide how the homestead should be selected, nor to whom notice should be given. "We are of opinion that the debtor may schedule his property at any time before the sale, under the present law; but that an announcement by the debtor to the sheriff or bidders, that he claims certain property as his homestead, is not sufficient to stop a sale. The law says the property shall be scheduled, and that the schedule shall be filed with the clerk, whose duty it is to issue a supersedeas staying the sale. This, in our opinion, is the only manner in which a sale of the homestead can be prevented.

All judgments are liens from the date of rendition upon the lands owned by the judgment debtor within the jurisdiction of the court rendering the same. Gould’s Dig. ch. 96, sec. 5. The fact that a judgment debtor may be entitled to a homestead exemption does not prevent the lien from attaching to the land that may be selected as a homestead. The selection of the homestead takes it from the maw of the execution and suspends the sale. The provision of our constitution is, that the homestead of a married man, or head of a family, shall be exempt, not from a judgment lien, but sale on execution or other final process. We are aware that the courts of Illinois, California and Iowa have held that a judgment lien would not attach to a homestead, but the weight of authority is the other way, and the rulings in the different states seem to hare grown out of the different constructions placed upon the word “ homestead.” In the states just mentioned, the idea seems to prevail that the law creating a homestead is an absolute investiture of the debtor with an estate, the fee in which can never be sold on execution so long as claimed and occupied as a homestead. The supreme court of Massachusetts, in Smith v. Provin, 4 Allen, 517, say: “ The homestead right is not a fee simple estate in the premises set off as_a homestead. It is only an estate in the premises to be held while the husband is a householder.” The same court, in the case of White v. Rice, 5 Allen, 76, say: “The 'proper construction of the statutes giving an exemption of a homestead is, that it is a mere exemption of the particular estate created by the statute, and that all existing beyond this is a reversionary interest, subject to attachment by all creditors.” Washburn, in his work on Eeal Property, p. 326, says : “ A homestead in law means a home place, or place of the home, and is designed as a shelter of the homestead roof, and not as a mere investment in real estate, or the rents and profits derived therefrom.” In construing the meaning of the word homestead under the law of Ohio, the court said, In re Watson, 2 B. R, 174: “The debtor does not acquire in the homestead set off to him a fee simple absolute deed, but he possesses only a qualified right, a right to possess and occupy it so long as he uses it as a homestead for his family. The remainder or reversion in such property, after that right is ended, belongs to his creditors, and passes by the assignment to the assignee, who may sell the same.” The views expressed in the foregoing cases are in accord with our own. No injustice is done the debtor by allowing the judgment lien to attach to the property claimed as a homestead, for the judgment lien in no manner interferes with his occupancy; nor does it deprive him of a home. In Hoyt v. Howe, 8 Wis., 752, the supreme court of Wisconsin say: “The effect of the exemption is, merely to prevent a forced sale of the property while it is occupied as a homestead by the debtor and his family, and if he convey it, the purchaser takes subject to the lien.” See Simmons v. Johnson, 17 Wis., 527.

Under the law of Minnesota, judgments are a lien on all the real property of the debtor in the county, owned by him, at the rendition of the judgment. The question there, as it is here, was, whether the judgment lien attached to the homestead, and the supreme court of that state said: “ The lien attached to the homestead owned and occupied by the debtor as a residence, and that the exemption of the homestead was only an exemption from sale on execution, while the debtor occupied it with the family, and did not affect the lien of the judgment.”

In the case of Whitworth v. Lyons, 39 Miss., 468, the question was between a judgment creditor and a purchaser from a judgment debtor, as to whether the judgment lien attached to the homestead from the date of its rendition, and the supreme court of Mississippi said: “ The object of the statute manifestly was, to secure a home and a means of support to the debtor and his family; but not to render the property exempt when it was not occupied by them, or some of them, after his death, as their place of residence. Consequently, after the sale and abandonment of possession, the right of exemption was at an end, and the rights of judgment creditors, prior to the sale, would attach.”

These decisions, and others which will be stated, are all based upon the theory that a homestead is a possessory right, and a right of occupancy that the process of the law shall not be used to disturb during the existence of the statutory estate. Folsom, v. Carte, 5 Minn., 333; Tillotson v. Millard, 7 id., 520; Whitworth v. Lyons, 39 Miss., 467.

In the case of Smith v. Brackett, 36 Barb., 574, the supreme court of New York say: “ The exemption is a mere personal privilege which the statute secures to the debtor, which does not run with the land. The object of the statute seems to have been to secure a habitation to families from motives of public policy, rather than the protection of the debtor’s property against the claim of creditors. In the case just cited, judgment had been obtained against a debtor, and after the rendition of the judgment, the debtor mortgaged the property and waived the benefit of the exemption act. The question then arose as to priority of liens, and the court held that the judgment lien had the preference, and the court, in disposing of the question, say : “ The exemption is from sale on execution, and does not exempt the property from being bound and charged by the judgment.”

In the case of Allen v. Cook, 26 Barb., 378, it appears that Cook obtained judgment against Packard who was the owner of a house and lot in Saratoga, and which was occupied by himself and family. The house and lot, at the rendition of the judgment, was register'ed under the law of the state as a homestead. After the rendition-of the judgment, Packard sold the house and lot to one Allen. This done, Cook sued out an execution and directed the sheriff to levy on the house and lot formerly owned by Packard. The question presented was, “Did the judgment ever become a lien on the property and, under the circumstances, is the same liable to satisfy said j udgment ?” In response to the question, Judge Allen, speaking for the court, says: “The lien of the judgment upon the exempt realty is clearly preserved, but the remedy is suspended until the debtor ceases to be a householder.” Continuing, he says: “ Suppose the day or month after he has secured his right, his wife should die, and his children all having arrived at the age of twenty-one years, the debtor should remove from the premises; unquestionably they might be sold under execution. Suppose the day before these casualties happened, the debtor should convey the property to a third person, would it be exempt from such sale.? I apprehend not. Could he then convey while he was such householder, and go out of possession of the property, and resort to abandoning his house with his family; or could he sell the property, put the money in his pocket and abscond, leaving his family entirely unprovided for, and the purchaser be protected against the sale under execution ? I think not; for in that event the main object of the law would be frustrated, and the intention of the legislature to provide a home for his family, as well as for the debtor himself, be entirely defeated, and he be enabled to practice a fraud upon his creditors and the community. The homestead is a personal right and cannot be conveyed away.”

Our constitution is silent as to the right of the debtor to sell and convey his homestead; nor does it declare that the purchaser shall have any right, beyond those he would acquire under an ordinary conveyance of real property subject to existing liens and incumbrances. It must be evident to all, that the framers of the constitution did not intend to confer the power on a debtor to sell his homestead discharged of all lien. The constitution itself recognizes an estate in remainder, and a termination of the homestead estate. The fifth section of article twelve declares, “ The homestead of a family, after the death of the owner thereof, shall he exempt from the payment of his debts in all cases during the minority of his children, and also so long as his widow shall remain unmarried, unless she be the owner of a homestead in her own right.” This clause of our constitution clearly discloses the intention that the homestead property of the debtor, after it had served the policy of the law, should he applied to the payment of debts, instead of passing to his heirs discharged of all liens, under the statutes of descent and distribution.

A careful review of the authorities discloses the fact that the rulings of the courts of Massachusetts, Ohio, Wisconsin, Minnesota, Mississippi and New York are in antagonism with those of California, Iowa and Illinois on the question as to whether the judgment lien attaches to the homestead property.

Under our statute, judgments are liens from the date of rendition, and continue so for three years, and may be revived from time to time in the manner prescribed by law. If we declare that the homestead property is not subject to a judgment lien, the result will be that all priority of liens will be stricken down, and that a junior judgment would be entitled to a pro rata distribution of the proceeds of the- sale. This would in no manner benefit the debtor, for it can be a matter of little concern to him, after his interest in it has ceased, what becomes of the proceeds, in a question where the dispute is between his creditors. In our opinion the framers of the constitution, by exempting the homestead from sale, did not intend, in any manner, to interfere with the rights of priority between judgment creditors, as fixed by law.

A point is made in argument upon the fact that the lower portion of the building was used for other purposes than a homestead, and it is argued that, because it was so used, it could not be claimed. The question whether a building is a dwelling house or homestead does not depend on the fact of its situation, external appearance, or internal arrangement, or that it would be vastly more valuable as a place of business than as a residence; but upon the fact that it is really and truly occupied as a dwelling house for the owner and his family; nor does the owner forfeit the benefit of his exemption by devoting some portion of the building to another use than a mere residence of his family. Phelps v. Rooney, 9 Wis., 80; Rhodes v. McCormick, 4 Clarke (Iowa), 368.

In the case of Greenwood & Son v. Maddox & Toms, 27 Ark., 660, Greenwood & Son recovered judgment against Maddox & Toms, and attachment was issued and levied upon certain real estate in which Toms had an undivided interest. Toms filed a motion to quash the levy on the ground that the levy was made on his homestead. The court below quashed the levy and the case was brought here by appeal. In disposing of the question thus presented, this court said : “ We think the better practice would have been, for the court not to have quashed the levy, but to have left the appellants at liberty to take out their execution, and Toms at liberty to apply for partition. It may be said that the appellants might be too fast for him with their execution. It may be answered that he could obtain an injunction to stay the sale until his homestead right could be ascertained and perfected.”

Here we have a recognized decision of the right to levy an execution on the property of a debtor, claimed asa homestead, with an intimation that if the debtor desires to prevent a sale, he must resort to equity and assert his rights, and that it was error in the court below to quash a levy because the property was claimed as a homestead. At the time of the rendition of this opinion, the attention of the court was not called to the act of March 28, 1871, regulating the manner in which the execution debtor should designate the property claimed as a homestead. In fact the motion to quash was made before the passage of the act alluded to. The proceedings in the case at bar were had since the passage of that act, and the question to be determined is, whether a failure or neglect to comply with the law amounts to a waiver of the homestead.

In the case of Miller v. Sherry, 2 Wall., 248, the supreme court of the United States held that a party whose property had been ordered to be sold by a court of chancery could not set up his homestead right, in an action of ejectment; that it must be set up, if at all, before the property is sold, and that after sale, the homestead right could not be set up to defeat the action. When we take into consideration that the Illinois statute, creating the homestead, declares that no release or waiver of such exemption shall be valid unless the same shall be in writing, subscribed by such householder and his wife, and acknowledged in the saige manner as conveyances of real estate, it being the object of this act to require, in all cases, the signature and acknowledgment of the wife as conditions to the alienation of the homestead,” this case may be regarded as a strong one on the question of waiving a homestead, it being at variance with the decisions of the supreme court of that state. Herschfeldt v. George, 6 Mich., 468.

From a careful review of all the authorities, we are of opinion that a failure or neglect to select the homestead in the manner pointed out by law amounts to a waiver of the right, and having been neglected, that a debtor cannot assert it in an action of ejectment. If the exemption is intended to be claimed, it must be asserted before the sale, and a debtor cannot prevent a sale of his homestead by simply telling the sheriff and bidders at a sale that he claims the property as his homestead. In such a case the sheriff is no more bound to pay attention to the claim than he would be where a party might exhibit to him the judge’s allowance of injunction, restraining the sale of property, where the party had not given the bond required in the injunction order. When a sheriff levies, he must sell the property unless ordered not to by the authority issuing the execution, or the judgment creditor.

The judgment creditor has the right to have the property appraised, to ascertain whether it exceeds in value the sum of five thousand dollars. If the sheriff had returned the execution and indorsed thereon that the defendant claimed the property as his homestead, such a return would not have authorized the clerk, on the application of the plaintiff to have appointed appraisers. If the provisions of the act of March 28, 1871, may be disregarded by a debtor, without impairing his right to a homestead, then the power is placed in his hands to prevent an appraisement of what he may verbally notify the sheriff he claims as his homestead, or a sale thereof, no matter what its value. g

The judgment of the Drew circuit court is reversed and remanded, with instruction to enter judgment in accordance with this opinion.

Bennett, J., dissenting.


text:
    Eddins vs. Graddy.
    Delivery Bond Judgments : Liens on what and how classified, etc.

    A delivery bond judgment is a lien- on tbe land of the obligors in the county, from tbe time of tbe forfeiture, and may be revived by scire facias, and is to be classified in tbe third class of claims against a decedent’s estate.
    Administration : When claim need not be presented for allowance.

    After judgment of revival, no presentation of it to tbe administrator for allowance is necessary; tbe service of tbe seirc facias is a presentment, and tbe judgment of revival an allowance against tbe estate.
    Statute oe Limitations : Suspended during the rebellion.

    All statutes of limitations were suspended during tbe late civil war.
    APPEAL from Desha Circuit Court.
    Hon. M. L. Stephenson, Circuit Judge.

      J. P. Clayton and Engles & English, for appellant.
   Compton, Sp. J.

On the 8th day of June, 1860, Alya H. Eddins recovered judgment in the Desha circuit court against George Q. Graddy for $5,192.16, with costs; on which judgment execution was issued and levied on the personal property of Graddy, who, with one Blackburn as surety, executed a delivery bond. On the 26th day of November, 1860, the delivery bond was returned forfeited and the execution unsatisfied, the result of all which was a statutory delivery bond judgment. On the 16th day of May, 1864, George Q. Graddy died; and on the 29th day of November, 1865, letters of administration on his estate were granted to Mary B. Graddy. On the 9th day of .June, 1866, Eddins sued out a scire facias to revive the delivery bond judgment, which was duly served on the administratrix, and at the return term of the writ, October, 1866, the judgment was regularly revived and the lien thereof continued. Afterward, on the 3d day of December, 1866, a transcript of said judgment was presented to the probate court by the attorney of Eddins, and classed by the court in the third class of claims against the estate of the said George Q. Graddy. On the petition of William H. Graddy, another creditor of the estate, the order of the probate court placing the claim of Eddins in the third class was moved into the circuit court on certiorari, and quashed; from which judgment of quashal Eddins appealed to this court.

That a delivery bond judgment is,a lien on the land of the obligors in the county, from the time of the forfeiture, and may be revived by scire facias, was decided in Biscoe v. Sandefur, 14 Ark., 569 ; and that all judgments recovered against a deceased person, in his lifetime, and which were capable of being liens on real property, whether he had any or not, belong to the third class of claims against his estate, was decided in Tucker, Rec'r v. Yell, Adm’r, 25 Ark., 420.

And although more than three years — the period of the statute bar as to judgment liens — elapsed from the date of the delivery bond judgment to the death of Grraddy; yet, according to the recent decision of this court in Metropolitan National Bank of New York City v. Gordon, all statutes of limitation were suspended during the late civil war; and consequently, the judgment lien in the case at bar existed at the time Grraddy died, and was continued in force by the proceeding on scire facias against the administratrix.

It is objected, however, that after the judgment was revived, there was no presentation of it to the administrator for allowance against the estate. None was necessary. The service of the scire facias was a presentment of the claim, and the judgment of revival was an allowance of it against the estate; in such case, the law requires the administrator to make return of the claim to the probate court (Clark, Adm'x, v. Shelton, 16 Ark., 479), and if he fail to do so, the claimant may, without further notice to the administrator, present the claim to the court for classification, as was done in this case.

According to the view we have taken, the claim of the appellant was properly classed, and the court below erred in questioning the record of the probate court; for which error the judgment is reversed and the cause remanded, with instructions to affirm the order of the probate court, classifying the claim of the appellant.

Stephenson, J., being disqualified, did not sit in this case.


text:
    State ex rel. vs. Tuffts.
    Legislative Enactments : Uneonstitutionality of, how pleaded.

    Where a party relies upon the fact, that an act of the legislature was not constitutionally passed, as that the act was not read three times on different days, the fact that it was not, instead of the pleader’s information and belief, should be unequivocally averred.

      QUO WARRANTO.

      T. D. W. Yonky, Attorney General, for plaintiff.
   McClure, C. J.

A writ of quo warranto, issued against the defendant, commanding him to show by what warrant and authority he assumed to exercise the office and duties of circuit clerk of Ouachita county.

In response thereto, he answers that he was duly elected and commissioned county clerk of said county of Ouachita, and that by virtue of said office of county clerk, he is by law entitled to discharge the office and duties of circuit clerk of said county of Ouachita. To the response the attorney general replies, that since said election, commission, qualification, etc., the general assembly of the state of Arkansas passed an act, entitled “ An act to provide for clerks of circuit courts in certain counties and to define their duties,” approved April 17, 1873, whereby it is enacted, that hereafter in all counties in this state, having a population of ten thousand inhabitants and upward, to be determined by the census taken by the authority of the United States in the year 1870, there shall be elected by the qualified electors of every such county, a clerk of the circuit court of such county, etc., with the proviso in 'said act, that until the general election to be held in the year 1876, the governor should appoint a clerk of the circuit court for each county, who, under the provisions of said act should be entitled to take the same, and such appointee should hold the office and perform the duties of circuit clerk, until the general election to be holden in the year 1876. That the county of Ouachita, by the census aforesaid, had a population of ten thousand inhabitants and upward, and under the provisions of said act was entitled to a circuit clerk, and being so entitled, his excellency, Elisha Baxter, governor of the state of Arkansas, in pursuance of the provisions of said act, did appoint one 'William B. Coit to the office of circuit clerk of said county of Ouachita, etc. That said Coit has been duly commissioned, that he has given bond and qualified, etc., and that by reason thereof became entitled to the said office, etc. To this replication the defendant rejoins by saying, that the county of Ouachita is not entitled to a circuit clerk under the provisions of the act in said replication mentioned, for the reason that since the census of said county was taken, the general assembly of the state Arkansas, on the 2d of January, 1871, passed an act, entitled “ An act to create the county of Nevada and for other purposes,” approved March 20, 1871, by which said act, townships eleven, twelve, thirteen and fourteen, in range twenty, and townships ten, eleven, twelve and thirteen in range twenty-one (said townships comprising the political or voting townships of Carouse, Caney and Missouri, and the greater part of Jackson and. one half of Jefferson), were taken from the territorial limits of the county of Ouachita, and made a part of said county of Nevada, thereby leaving said county of Ouachita at that time and since with a population of less than ten thousand. The defendant further says, that he is informed and believes that the said act of the general assembly, entitled “ An act to provide for clerks of circuit courts in certain counties, and define their duties,” approved April 17, 1873, was not passed in accordance with the provisions of article five, section twenty-one, of the constitution of the state of Arkansas, the same not having been read three rimes on different days in the house of representatives of said general assembly, as will more fully appear by reference to the journal of the house of representatives.

If the act was not passed in the manner required by the constitution, the facts which render it invalid should be distinctly stated. The defendant’s “ information and belief ” that a bill was not read three times, on different days, in the house of representatives before its final passage, may induce him to indulge in certain conclusions, but unless he disclose the facts to the court upon which he bases his conclusions, we have no means of ascertaining whether his conclusions of law are well founded. What the journal of the house of representatives may show is one thing, and what the defendant is “informed and believes” they show is quite another. The act of April 17, 1873, is published with the other acts of the legislature as being a valid act, and until it is shown that it is not, we shall indulge all presumptions in its favor. If the law was not read three times, on different days, the fact that it was not, instead of the pleader’s “information and belief,” should be unequivocally averred, to the end that an issue may be formed as to the fact and not as to the “belief.” This court will not, at the mere suggestion of a pleader, that a law was not legally passed, examine the house journals to ascertain if his “information and belief" be well founded. Having disposed of this portion of the rejoinder, the question presented is, Does the rejoinder show that Ouachita county did not have the requisite number of inhabitants? The averment is, that the political townships of. Carouse, Caney and Missouri, and the greater part of Jackson and one-half of Jefferson were, by the act creating the county of Nevada, taken from the territorial limits of the county of Ouachita, “ thereby leaving said county of Ouachita at that time and since with a population of less than ten thousand.” Just how many inhabitants resided on the territory taken from Ouachita county and added to that of Nevada, is not stated. The rejoinder is very inartistically drawn, as it states conclusions of facts instead of the facts themselves. If the defendant had stated that by the census of 1870 the county of Ouachita had upwards of twelve thousand inhabitants, and that it was reduced below that number by the act taking the townships named from the county, stating the resident population thereof as shown by the census, he would have laid the foundation for the conclusion that the county was reduced below ten thousand, if the facts would warrant the assertion.

For our own satisfaction and for the purpose of ascertaining whether a substantial defense could be set up by the defendant, in the event he had leave to amend, we have examined the census of 1870, and find by deducting the resident population of the townships of Carouse, Caney and Missouri and three-fifths of'Jackson and one-half of Jefferson, that the county of Ouachita would be left with a population of over ten thousand.

In view of this the demurrer to the rejoinder is sustained, and a judgment of ouster will'be entered.