author: MaCx~uuE, 0. J.

text:
    Scott v. The State.
    O32i~L AND Wi~xr~~ T~sTn~oNy-How mado of 9'eoo~d.-Neither oral or written testimony constitute any part of the record, miloss it is made s~ by order of the court, by agreement of the parties, by demurrer, by oyer by bill of exceptions or by spt~cial verdict.
    Appeal from Pulaski Circuit (Jourt.
    lION. JoH1~ W1wToai~, Circuit Judge.
    13e7?ja?nin, Galla~q/ier, 1'Tewton ~` Ilempstecul, and how-am'l B. S. Ganit, for appellant.
    Monfgome)71, Attorney General, for appellee.
   MaCx~uuE, 0. J.

The only difference between this case and that of the State v. Henry et al., is that the counsel for the appellants, and the attorney general, have filed an agreement whereby this court is granted permission to consider the record as containing the following facts:

.F~i'at. "That the appel] ant sold liquor in quantities less than one quart, in the city of Little Rock, in the county of Pulaski, and State of Arkansas, and that he had not procured from the county court a license for the sale of the same."

Second. "That said record may a'so be consIdered as coutain~ ing the annexed certified copy of the order of the county court establishing said license, which was omitted from said transcript."

This agreement re'ates solely to the evidence adduced at the trial, and. is not an agreement to perfect the record., although it proposes to be such. Neither oral or written testimony stitute any part of the record, unless it is made so by order of the court, by agreement of the parties, by demurrer, by oyer, by bill of exc~ptions, or by special verdict." Lenox v. Pike, 2 Ark. 214; Berry v. Singer, 10 Ark 491; Dillard v. Parker, 25 Ark. 507.

This record contains the finding of the indictment, the indictment, the waiver of arraignment, a plea of not guilty, the waiver of a jury and a consent to submit the cause to the court, sitting as a jury. The record then continues by saying, “aud the court, having heard the evidence adduced, and the argument of counsel, overrules the defendant’s demurrer and assesses a fine of twenty dollars against said defendant. It is therefore considered,” etc. To which ruling the defendant ■excepted and prayed an appeal to the Supreme Court.

It appears, from the closing portion of the record, that a demurrer was overruled, hut whether the demurrer related to the indictment, or to the evidence adduced at the trial, we have no means of ascertaining, as wo are unable to find a copy of the demurrer in the transcript; nor does it appear that a demurrer was filed, save, as is incidentally recited in the finding of the ■court. If this demurrer was actually filed audit related to the evidence, it would at once perform the office of a bill of exceptions, if properly framed; but in its absence, we are unable to tell what its mission was, if it ever had one. A demurrer to evidence must be to the whole evidence; whether this agreement, filed by the attorneys of the appellant and the attorney general, contains dll the evidence, we are not able to determine; nor does it so state. If we should consider this agreement as •containing all the evidence, this judgment would have tobe reversed, because it no where appears that the selling of the liquors without license, took place before the finding of the indictment. We are not at liberty to presume that the statement filed contains all the evidence,,where the effect would bo to procure a reversal of the judgment. If we were to hear this •cause upon an agreed statement of facts, or to try the case de novo, as seems to be the desire of counsel, grave questions might arise as to the validity of a judgment rendered, by this court, under such circumstances. We sit here to hear and determine causes of this character on appeal, or writ of error, and such would not be the functions of this court, if we heard it upon an agreed statement of facts. For the reasons given in the case of Henry et al. v. The State, the judgment will be affirmed.


source: Caselaw Access Project

author: MoClubk, O. J.

license: Public Domain

text:
    Henry, et al. v. The State.
    Costitutional Law. — Chapter 169, of Gould’s Digest, regulating taverns, groeeries and dram shops, is not repealed by section seventeen, of article X, of the Constitution of the State — nor is it in conflict with section five of article X.
    What acts continued in force. — All laws continued in force, by virtue of section sixteen, of article XV, of the Constitution, are as valid as though re-enacted by the General Assembly.
    Power to License — License not a tax, eta. — The 'Legislature may pass any law not inhibited by the Constitution, and a law requiring an amount or • sunr of money to bo paid for a license to sell spirituous liquors, is not a tax in the sense used in section five, of article X, of the Constitution.

      Appeal from Pulaski Circuit Court.

    Hon. John Wiiytock, Circuit Judge.

      Rice tj- Benjamin, Gallagher, Newton <f Hempstead, Howard and R. S. Gantt, for appellant.

      Montgomery, Attorney General, for appellee.
   MoClubk, O. J.

It appears from the record that James A. Ilenry, John Kia-kead and William S. Davis were indicted for keeping grocery without license. At the trial the accused waived a jury, and the cause was submitted to the court for trial. Plea, not guilty. The appellants were found guilty and a fine of twenty dollars imposed, whereupon the appellants excepted and prayed an appeal to this court. Uo exceptions were taken to the evidence, nor was there a motion for a new trial.

The only point urged in this case, that is not urged in Scott v. The State, is that the appellants were inn-keepers, and not grocery keepers. In the absence of a bill of exceptions, it is impossible for us to determine, whether the evidence adduced at the trial showed that the appellants were grocery keepers or inn-keepers. "We shall therefore presume that inasmuch as the court found these parties guilty of keeping a grocery without license, and the counsel not thinking enough of the point to save the proof upon it, by bill of exceptions, or otherwise, that there was proof to sustain the finding. The other points argued in this case are similar to those urged in the ease of Scott v. The State, and what may bo said in this, will be equally applicable to that. It is urged that chapter 169, of Gould’s Digest, which regulates taverns, groceries and dram-shops, is repealed by .section seventeen, of article ten, of the Constitution of the State. The section alluded to reads as follows : “ The General Assembly shall tax all privileges, pursuits and occupations, that are of no real use to society. All others shall be exempt, and the amount thus raised shall be paid into the treasury.” How this section repeals chapter 169, of Gould’s Digest, we are unable to determine.

Before the adoption of the present Constitution, the Legislature imposed a license and a tax upon the privilege, pursuit or occupation of retailing spirituous liquors in less quantities than a quart. The only change made by reason of the adoption of section seventeen, of article X, is, that of an inhibition, as against the power of the Legislature. It is an universal rule that the Legislature may pass any law which the Constitution does not inhibit. Counsel for the appellants seem to he infatuated with the idea that, because chapter 169, of Gould’s Digest, was passed before the adoption of the present Constitution, that it is not in force. All laws in force, before the adoption of the Constitution, were continued in force by section sixteen, of article XV, of the present Constitution, not in conflict with its terms. The whole argument is based upon the supposition that the right to license and tax a grocery-keeper is derived expressly from the present Constitution, and that it did not exist before; in other words, that something new in the history of government had been invented. It is admitted, taeitty, by counsel for the appellants, that the General Assembly has the power, under the present Constitution, to impose such a tax as is imposed by chapter 169, of Gould’s Digest, in relation to grocery keepers and dram sellers; but it is urged because no new enactment was indulged in by the Legislature, that the old law is a nullity. Such is not the fact. The laws continued in force by the Constitution itself, are as ralid as though re-enacted by the General Assembly.

These parties are not indicted for keeping a grocery without paying a tax; they are indicted for keeping a grocery without license. That the legislature has the right and power to require this class of persons to take out a license before engaging in business, we have no doubt. It is said that, chapter 169, of Gould’s Digest, is in conflict with section five, article X, which •declares: “No tax shall be levied except in pursuance of law, etc.” A demand of $100, or any other amount of money, for a license to sell spiritous liquors, is not tax in the sense used in section five, of article X, and has .never been so regarded in -any State of the Union.

As a defective record, this transcript has few equals and no superiors. There is no one point argued in the briefs, that has any application to the case made by the record, but as counsel seem to have been preparing a case to elicit the opinion of the -court upon the constitutionality of the 169th chapter of Gould’s Digest, we have intimated pretty plainly what it would .be, on a record presenting that question.

The judgment is affirmed.


author: G-Regg, J.

text:
    Prairie County v. Bancroft.

      Appeals — What necessary. — Where no exceptions are taken to any decision or ruling of the court, no motion for a new trial, nor any hill of exceptions, or other steps to bring the evidence beforo this court, there is nothing presented for the action of the court.

      Appeal from Prairie Circuit Court.

    Hon. John 'Wiiytock, Circuit Judge.

      Wassell ¿- Moore, and Garlomd,• for appellant.

      English, Gantt English, for appellee.
   G-Regg, J.

It appears from the transcript that appellee presented an account for printing, against Prairie county. The county .court, upon consideration, rejected his claim and adjudged that it be disallowed. Bancroft appealed to the circuit court. By consent of the attorneys, for the parties, the case was then taken up and submitted to the court sitting as a jury; then follows a detailed statement of the facts found by the court, and upon which judgment was rendered, in favor of the appellee, for $842, and an order that the same be certified to the county court of Prairie county, etc. No exceptions were taken to any decision or ruling of the court; the court was not asked to declare the law upon the facts; there was no motion for a new trial, nor was there any bill of exceptions or other steps taken to bring the evidence before this court for review, and hence, under the repeated decisions of this court, there are no questions presented here for the action of this court. Chester Ashley v. C. Stoddard, jr., & Co., at the present term of this court; Eason v. Fisher, 1 Ark., 90; McDaniel v. Tait, 5 Ark., 309; Massey v. Gardenhire, 12 Ark., 638; Johnson v. Rutherford, 23, Ark., 24; Peterson v. Gresham, 25 Ark., 380, and other cases.

The judgment of the court below is affirmed.


author: Seakle, J.

text:
    Smith & Bro. v. Van Gilder, adm’r.
    Commissioners of otheb States. — Commissioners, appointed by the Governor for other States, under chapter 32, Gould’s Digest, are officers of this State, and affidavits taken and certified by them, properly authenticated under the seal of their office, are to receive full faith and credit. Section 109, chapter 4, Gould’s Digest, respecting the authentication of claims against the estates of deceased persons, was intended to apply to affidavits made before officers of other States, and not to commissioners of this State, appointed, and residing in other States.
    Authentication of claims. — An affidavit, in the usual statutory form, to a note given by a firm, to the effect that nothing has been paid upon it, though not alleging that the amount was due from the estate of a deceased member of the firm, is a sufficient legal authentication as against the estate of the deceased member.
    Probate court — Appeals from, to be tried de now. — The practice, on appeals from the decisions of the probate courts, has been changed by the Civil Code of Practice. Under the Code, all cases appealed from the probate to the circuit courts are to be tried anew, as if no judgment had been rendered.
    Code of Practice — to govern. — When the case was tried in the probate court before, and in the circuit court after the Code of Practice went into full operation, the court should be governed in the determination of the case by the Code of Practice.
    Retrospective acts — when void. — Legislative acts, retrospective in their character, are not void, unless they conflict with some oonstitutiona i provision or interfere in some respect with vested rigid s.

      Appeal from Ashley Circuit Court.

    Hon. Hjsniiy 3?. MORSE, Circuit Judge.

      Watkins $ Bose, for appellants.
    That the affidavit was properly authenticated and sufficient. See Kauman v. Stone, 25 Ark.

    "We submit that there should have been a trial de novo in the circuit cQurt. See sec. 20 of the Code; also sec. 830, which provides, that on appeals from probate courts {see sec. 806,) the action shall be tried anexo.” See also Gotdd’s Dig., p. 188, sec. 201; Grimes v. Bush, 16 Ark, 61/.9.

      J. W. Van Gilder, for appellee.
    The affidavit is fatally defective, in that it does not authenticate the claim against the estate of the deceased.

    The note was signed “E B. Kittrell & Co.” The affidavit is to the effect “that nothing had been paid or delivered toward the satisfaction of the above demand, and that the sum above demanded is justly due.”
    This certainly can not be considered as authenticating a claim against the estate of D. L. Evans. It could just as well have been presented for allowance to the administrator of any other estate within the State of Arkansas. And by section 103, of chapter 4, of the Digest, the administrator is prohibited from paying or allowing any debt demanded as due from the deceased without it is properly authenticated. It is true the affidavit is partly in the general form presented by section 102. But that is only intended as a general form, and the affidavit must vary to suit the circumstances ©f each case. Beirne Burnside v. Imboden, 11 Ark., 2ff; 16 Ark., 52.

    The claim must be authenticated against the estate of the deceased. Chapter 1, sections 99,102,103, 107 and 108. And not a general authentication that would apply to any estate. F Ark., 78; 11 Ark., 237-, If Ark., 2f6; 21 Ark., 519.

   Seakle, J.

This suit was brought, by the appellants, who were plaintiffs below, against W. E. Kittrell, as administrator of the estate of D. L. Evans deceased. Kittrell, during the progress of the suit, resigned as such administrator, and J. W. Van Gilder was appointed in his place. The action was commenced by filing, in the probate court, the note sued on, signed by B. E. Kittrell & Co., to which was attached an affidavit, taken before a commissioner of deeds for the State of Arkansas, residing in ■the State of Louisiana, to the effect, “that nothing had been paid or allowed toward the above demand, and that the sum .above demanded is justly due.” Before filing in the office of the clerk, the note had be,en presented to the administrator, who disallowed it, waiving copy and service.

On the trial in the probate court the defendant objected to the introduction of the note as evidence, because the claim was not authenticated as required by law, which objection was sustained by the court. The plaintiffs also offered to read depositions to prove that D. S. Evans, defendant intestate, was a member of the firm of E. B. Kittrell & Oo, which was also objected to, and the objection sustained by the court. Judgment was rendered against the plaintiffs, and they appealed to the circuit court. The plaintiffs asked in that court a trial de novo, which wa3 refused, to which refusal they excepted. The court upon the examination of the record and bill of exceptions found no error, and affirmed the judgment of the probate court, from which plaintiffs appealed to this court.

These questions are presented for our consideration in this case:

First, Was the affidavit appended to the note properly taken, and legally sufficient?

Second, Bid the circuit court err in sustaining the ruling of the probate court, in excluding the evidence, which the plaintiffs offered, to prove that B. 8. Evans was a member of the firm of Kittrell & Co., when the note was executed by the firm?

Third, Bid the court err in refusing to try the case de novo?

Fourth, As to whether the affidavit was properly authenticated, and its legal sufficiency?

It is contended that the affidavit was not properly authenticated, because there was no certificate of a clerk of some court of record, under his official seal, superadded, bearing testimony to the official character of the commissioner, in accordance with section 109, chapter 4, Gould’s Bigest. This objection is not tenable, because the statute, authorizing the appointment of commissioners (chapter 32, Gould’s Bigest,) and prescribing their duties and powers, provides, among other things, that all affidavits taken and certified by them, “shall be as effectual, in law, to all intents and purposes, as if done and certified by a justice of the peace or other authorized officer within this State.” And it is provided by the statute of depositions (see. 16, chap. 55, Gould’s Digest,) that no authentication of the official character of any judge, justice of the peace, or other judicial officer, shall be necessary, when a deposition shall be taken before any such officer within the State. And this rule, we presume, applies equally to all oaths administered and affidavits taken, as to depositions, and for the same reason. By the same section last above mentioned, depositions, taken out of the State, by judges and justices of the peace, shall be authenticated by a certificate of a clerk of some court of record under his official seal. These general rules, as laid down by the statutes, are founded in the most substantial reasons. The design of the law is simply to afford evidence of the proper making and subscribing of oaths and affidavits. And when the authentication, which is such evidence, fulfills this design, this should be sufficient for the courts. Courts cannot take judicial notice immediately of the official character of officers of other States. Such notice must necessarily be mediate, that is, through and by the solemn sanction and attestation of a public seal. But it is entirely otherwise as to officers of our own State. Such the ■ courts are bound to take judicial notice of, immediately, and any mediate authentication, as by a clerk under the seal of his office, would be quite superfluous. Likewise, they must take judicial notice of their acts,, when performed within the scope of their duties, and in a legal manner. These general rules, of the statutes, apply equally to commissioners residing abroad. They are nothing more nor less than officers of this State. Like judges and justices of the peace at home, they are appointed by authority of this State. They take and subscribe an oath of office, which, together with their signature, and the impression of the seal of their office, is filed in the office of secretary of State, of this State. The courts of this State are bound to take judicial notice of their official character and their acts, required of them by the laws of this State, properly authenticated under the seal of this office, are to receive full faith and credit. The acts therefore of such functionaries, notwithstanding they reside beyond the State, are thus placed upon a par, as to their authenticity, with similar acts performed by officers of this State, residing within her limits. And such has clearly been the ruling of this court heretofore, as declared in Johnson v. Cook, use etc., 12 Ark. 680; Stone, ad’mr. v. Kaufman & Co., 25 Ark. 188; Kaufman & Co., v. Stone, ad’mr. 25 Ark. 342. In the latter case, this court said: “ the record of the appointment of Graham (who was commissioner in the State of Louisiana,) by the Governor, is a matter of which the courts of this State must take judicial notice. The certificate and official seal of the commissioner, was all the evidence of official character that parties litigant were bound to furnish.” Section 109, above referred to, relating to the authentication of claims against the estates of deceased persons, and upon which the defendant seems so much to rely, provides that, “an affidavit taken out of the State, if-the official character of the person taking it shall appear from the certificate of a clerk of any court of record under his official seal, shall be received.” This, doubtless, relates to officers of other States and not to commissioners appointed by authority of this State, for the latter, as we have seen, are virtually officers of this State; and we are helped to this conclusion by this same section, when it declares that, “any judge, justice of the peace or notary public of this State, have power to take the affidavit required by this act to authenticate any claim against the estate of a deceased person.” As we have seen, commissioners, in this State, stand in the same relation, in this matter, as do those officers. It is further contended that the affidavit is legally insufficient, because it does not authenticate the claim expressly against Evans or his estate. The note was executed by Kittrell & Oo. The affidavit was to the effect that nothing had been paid upon it. It was in the usual statutory form, but did not allege the amount was due from Evans’ estate. Is this an authentication as against the estate of Evans ? Ilittrell & Oo., were liable upon the note. If Evans belonged to the firm, he was liable, and at his death, his estate became liable. But the plaintiffs allege tha^ he was a member of the firm, and they presented their claim, before bringing their action, to the administrator, and he disallowed it. It really seems to us that the authentication was legally sufficient, when we consider the presentation and demand, the allegation that the deceased was a member of the firm, and the offer of plaintiffs to prove it. For, if the authentication had expressly indicated that the debt was due from Evans, or from his estate, there would have been the same necessity on the part of the plaintiffs to prove that Evans belonged to the firm of Kittrell -& Co., as there' is in its present form. BTor can we see that the •authentication so made, would fix the indebtedness with more ■certainty than it does, or place the administrator in a better •condition to resist the claim if unjust.

The second question is, did the probate court err in refusing Ifco permit the plaintiffs to prove that the deceased was a member of the firm, when the note was executed? This question is virtually answered by our observations upon the legal suffi-. ciency of the affidavit. For certainly, if the affidavit was ■sufficient, the plaintiffs had a right to prove their allegation, that Evans was a member of the firm, in order to fix his liability upon the note.

The third question is, as to whether the circuit court erred in refusing to try the cáse de novo? This might be considered ■as being answered by what we have already said. For if the probate court erred as to matters of law and fact, it was the duty of the circuit court to try the case de novo. But we are ■disposed to consider this question further, upon general principles, relating to practice. Under the old system of practice, before the Code of Practice went into operation, it was incumbent upon the circuit court, when it was of opinion that the probate court erred in relation to any material matter of law or fact, to try the matter de novo. Sec. 210, chap. 4, Gould’s Digest; Grimes ad’mr v. Bush. 16 Ark, 649. When the circuit court discovered no error, it simply affirmed the judgment-When the decision of the probate court involved merely a question of law and its judgment was reversed, the circuit court remanded the cause to the probate court, that a trial might be there had upon the merits. Dempsy v. Fenno, 16 Ark. 491. But the practice, in these matters, has been very much changed by the Civil Code of Practice. It appears from sections-19 and 20, of the Code, that the appellate jurisdiction, of the circuit courts, shall extend to errors of facts, as well as errors of law, in the orders and judgments of probate and éertain other courts.

It is further provided, in section 830, that appeals shall be docketed and stand for trial, as actions by proceedings at law, and that the actions shall be tried anew, as if no judgment had been rendered. And, by sections 796 and 806, it would seem that the provisions of section 830 are applicable to circuit courts, upon appeals from probate courts, as well as from all other courts, inferior to circuit courts. There can bo no doubt-,, we think, th’át'all'éasós-, l!).j^|jpeal from probate to circuit courts, aré to be tried anew,.as if no judgment had been rendered. The'case before us wa^ determined in the circuit court since the Code went fully i-fiáo -operation. But we are unable to determine whether it was tried in the probate court before, or Bince, as the date upon the transcript is left blank; if since, there could be no doubt that the circuit court committed an error in not trying the ease anew, whatever may have been its opinions as to errors in the trials by the probate court. But presuming that the case was tried in the probate court before the Code went into operation, by which practice, the old or the new, should the circuit court have been governed in the determination of the case ? We think that this question is directly and fully answered by section 1, Act 83, of the Acts of 1869,. where it is declared that, “after the first of June,” when the-Code went fully into operation, “the Code of Practice shall regulate the practice and all proceedings in the courts of this. State, as therein provided.” This is certainly as binding upon circuit courts as language could make it. It is true, in this case, the Act makes the Code of Practice retroactive, and it may be contended that the appellee is prejudiced in his rights by having his case determined under a different law of procedure than that under which the suit was instituted. J3ut this position is untenable, for it is well settled, as a general rule, that a right to a particular remedy is a part of the right itself. But this case cannot be brought within the exceptions. Legislative Acts, which are retrospective in their character, are not void, unless they conflict with some constitutional provision, or interfere in some respect with vested rights. See Smith et al v. Bryan, 34 Ill's. 377. Rosier v. Hale, et al 10 Iowa 486. Halloway v. Sherman, 12 Iowa, 283. McCormick v. Rusch, 15 Iowa 131. Rockwell v. Hubbells, adm’r. 2 Douglass, (Mich.) 200. Lord v. Chadbourne, 42 Maine, 441.

The Act, above referred to, is not in conflict with any constitutional provision, nor does it interfere in any respect with vested rights. It therefore ought to be obeyed. It is mandatory, and therefore must be obeyed.

We are of opinion, therefore, that the circuit court erred in not trying the case anew. Epr this and other errors, the judgment is reversed, and the cause remanded, with instructions t* the court below, to try it anew upon its merits.


author: HarRison, J.

text:
    Trammell v. The State.
    Murder -Verdict should find the degree. — In an indictment for murder, a verdict of conviction, which does not find the degree of murder, is so fatally defective that no judgment can be entered upon it.

      Appeal from Ouachita Circuit Court.

      Hon. G . W. McCown, Circuit Judge.

      JR. G. Newton, for appellant!

      If. W. Benjamin, and Thos. Marcum,, for appellee.
   HarRison, J.

Albert Trammel was tried, in tlie Ouachita circuit court, for the murder of Caroline Trammell-. The jury found him guilty, 'but failed to find the degree of murder, and he was, upon the verdict, sentenced to be hanged.

The record in this ease is manifestly very imperfect. Copied in the transcript is what, though very informally and inartis-tically drawn, was, perhaps, intended for a bill of exceptions, ■purporting to set out a motion for a new trial, and exception, by the defendant, to the overruling of the same; but which does not appear to have been filed, or in any manner made part of the record. But we held in Thompson v. The State, and Allen v. The State, decided at the last term, after a full examination of the authorities, that a verdict of guilty upon an indictment for murder, which does not declare the degree, is so defective that no judgment can be pronounced upon it. As we said in the former of these cases, the statute, establishing degrees in murder, did not create any new offense, or change the defination of murder, as it was understood at common law, but only mitigated the punishment, when not committed under -certain circumstances of great atrocity, and that an indictment for murder, in the commondorm, does not charge murder in the first degree. And we think there can be no doubt that, if the murder were charged to have been committed by lyinga wait, or in the attempt to commit arson, or any other of the felonies enumerated in the statute, though the proof should fail as to such fact, the accused might, nevertheless, be convicted of murder in the first degree, if committed by any kind of willful, deliberate, malicious and pre-meditated killing, the means and manner of which are sufficiently set forth and described in the indictment.

The judgment is reversed and the cause remanded to the court below, with instructions to put the accused again upon trial, and to proceed according to law.


author: McClure, C. J. 'Geegg, J.,

text:
    Steck v. Mahar.

      Appeals — Motions for new trial, ete. — On an issueand trial of fact by a jury, or the court, a motion, for a new trial is essential to correct the error» growing out of the evidence or instructions, before an appeal can be entertained by this court; but where the errors do not grow out of tho evidence or instructions, but are apparent from the record, without the-intervention of a bill of exceptions, there is no necessity for the motion, and the cause, in such a case, can be brought to this court without tho motion having been made.
    Where the errors complained of do not appear of record, save by the intervention of a bill of exceptions, a motion for a new trial must be made before an appeal will lie to this court, and.tho appeal will not then lie, if ^ the^erjbr.can'be corrected'inf the court below, until’the motion has been ’■ ,TTfmado and overruled in the circuit court.

      Appeal from Jefferson Circuit Court.

    Hon. Henry B. Mouse, Circuit Judge.

      J. A. Williams and Montgomery f Warwick, for appellant-

      Garland f Nash, for appellee.
   McClure, C. J.

This action appears to have been commenced under section 525, of the Civil Code, which provides that a proceeding at law may be instituted against a party who usurps an office, by the party entitled thereto.

The appellee, who was the plaintiff in the court below, alleges, in his complaint, that he was legally appointed and commissioned as constable of Vaugine township, Jefferson county, by the Governor of the State, and that ho has given bond and qualified as such, and is entitled to said office of constable, and the fees thereof. That one Jacob S. Steck has usurped said office,' and is exercising the duties thereof without authority of law, and has received fees pertaining to said office, amounting to $1,000, and concludes by asking that said Steck be removed from said office, and that he, the plaintiff’,, have judgment for the fees received by said Steck, as constable.

Steck, as a response and exhibit, as appears from the record, simply filed his commission as constable. The cause was submitted to the court, sitting as a jury, and the court found for the appellee, and that Steck was an usurper, and rendered a judgment against him for $100 00, as-•damages.'' ff’íT'wSrctí. ruling and finding of the court Stock excepted, and .asked time to prepare his bill of exceptions.

The bill of exceptions recites that the only evidence offered by the appellee was his- commission, and that the only evidence offered by the appellant, was his commission. No declarations of law seem to have been asked by either party; nor does it appear that the court made any declaration of law; nor was there a motion for a new trial. Under this state of facts, the defendant, in the court below appealed, on an issue and trial of fact, by a jury, or the court. A motion for a new trial is essential to correct the errors growing out of the evidence o.r instructions, before an appeal can be entertained by this court. Where the error complained of does not relate to errors growing out of the evidence or instructions, hut are apparent from the record, without the intervention of a bill of exceptions, there is no necessity for making a motion for a new trial, and the cause, in such a case, can be brought to this court without making the motion; but in cases where the error complained ■of does not appear of record, save by the intervention of a bill of exceptions, a motion for a new trial must be made before .appeal will lie to this court; and the appeal will not lie in the case last supposed, if the error complained of can be corrected in the manner provided in section 571, of the Civil Code, until the motion has been made in the circuit court, and there overruled, (Sec. 886.)

In the ease at bar, it appears there was an issue and trial of fact by the court below; not only an issue and trial, but a finding that Mahar was, and is the legal constable of Vaugiue township, and that Stock is an usurper of said office, and not entitled to discharge the duties thereof, and of right, has no .claim thereto. A judgment of ouster followed this finding. There is no error in the judgment, if the finding of the court, sitting as a jury, is correct. Whether the court erred as to the finding of facts, we have no means of ascertaining, nor would it be proper for us to take the matter under consideration, in the present attitude of the case. Counsel for the appellant urge that the bill of exceptions is defective in not showing the evidence, or in any manner identifying it. It is unnecessary to say any thing about.the exceptions, as the record itself cannot be considered by the court.

The appeal is dismissed.

'Geegg, J.,

dissenting, says:

In this-case an action was brought, under the Code, to determine the right to the office of constable in Vaugine township, Jefferson county.

The suit seems to have been regularly brought; the partie* appeared in the circuit court and, by consent, went to trial before the court, sitting as a jury; both introduced evidence; the court found forthe appellee, and rendered judgment, ousting the •appellant from the office, etc. He excepted to the finding and judgment; tendered his bill of exceptions, which was made part of the record, and prayed an appeal to this court, -which was granted.

In our opinion, this brings the ease properly before this court for affirmance or reversal.

If the appellant has failed to show error in the court below, the judgment should be affirmed.

If a motion for a new trial must bo made in that court, before this court can consider any alleged error growing out of the evidence or instructions of the court, a party appealing without such motion, loses any advantage that he otherwise would have had upon a review of the evidence or instructions, and if the record shows no error outside of such exceptions, the record should at once be affirmed.

A litigant often takes all the necessary steps to bring his •case properly before the court for determination, and wholly fails to show any error in the record; his appeal is not, therefore, dismissed, but the judgment affirmed.

When an appeal is granted the whole record comes before the court. Suppose assumpsit should be brought upon an alleged promise to pay one thousand dollars for the murder of ten black men, and the defendant should set up that the plaintiff was to murder fifteen for that sum, and having killed but •ten no right of action had accrued, and should a trial be had, finding and judgment for $1,000 for the plaintiff, a bill of exceptions taken, setting out the evidence, a motion in arrest of judgment, and an appeal to this court, but no motion for a new trial, would this court, for that reason, not look to the other errors and illegalities upon the face of the record, and ■reverse without considering the evidence or instructions?

The errors of law appearing de hors, the evidence and instructions should be corrected. For want of the motion the appellant simply loses the benefit of his objections and exceptions, wherein such motion is required, and if there is no other error, as in the case under consideration, the judgment should be affirmed. If additional error appears it should be reversed. And if this court refuses to consider the record, simply because there was a bill of exceptions to the admission of evidence, and no motion for a new trial, then it can never discover whether there were other errors or not. If this court does go into the record to find whether or not such other errors exist, then it should-, by its judgment, announce that there is or is not error; that is, affirm or reverse.

It certainly cannot he earnestly contended that errors made to appear upon the record, by demurrer or otherwise, entirely disconnected with the evidence or instructions, cannot be corrected, because a litigant has set out a bill of exceptions, and made no motion for a new trial. The fact of losing the benefit of his exceptions, in these particulars, does not forfeit his right to have other errors considered, and if the court considers the record at all, to see if other errors are apparent, how is the world to know its conclusions, if the fact is not announced by affirming or reversing the judgment?

We hold that the juclg-mcnf shqujd, have, been affirmed.


author: SbaRle, J.

text:
    Ringo v. Brooks.
    Statute of Limitations-— What will suspend.— To suspend the statute of limitations or to remove the bar, when it once attaches, there must be an acknowledgment of the debt or a promise to pay it. If it be an acknowledgment simply, it must be express and to tbe effect that the debt is due at the time. If it he a promise, that also must be express and pre-supposes an acknowledgment.
    The acknowledgment or promise must cleai’ly identify the debt; must identify it with such certainty as will determine its character and the amount due; it must he made to a party in interest, to tbe person to whom the debt is due, or one authorized to act for him, and with the intent to pay it ■ at the time.

    Where there is no privity between the parties, a promise or acknowledgment will not suspend tbe statute.

      Appeal from Pulaski Circuit Court.

    Hon. John “Whytock, Circuit Judge.

      Bingo, Garland $■ Nash, for appellant.
    This suit was brought under the Ijth section of uAn Act, ■defining the jurisdiction of Justices of the Peace,” approved December 16,1863, and was properly brought in the name of Ringo, the party in interest, if brought at all under the law then in force.
    The repeal of that portion of the act under which the suit was brought, by the Act of April 12, 1869, did not invalidate the proceedings, but continued and made effectual the same, the same as though there had been no repeal. See Ac', 18 April, 1869; also secs. 79j-95 of Code; also sections 25 and 80 of Code. Hence, we submit that the court erred in sustaining the demurrer to the plain tiff’s replication to the statute of limitations.

      Bice $ Benjamin, for appellee.
    Brooks had the right to pay all of the firm debts by pleading the statute of limitations, if that was or would have been a good bar to the debt, if the firm had not entered into such covenant. See Gould’s Digest, page 758, and see ions 22 and S3. See Woody, et al v. State Bank, 13 Aik. 780. Grant v. Ashley 12 Ark. 762.

   SbaRle, J.

This was an action, brought before a justice of the peace, by the appellant against the appellee, on the 3d of February, 1869, for the recovery of money alleged to be due, for the use and occupation of his certain farm by appellee, during the year 1865. The action was upon an account against one Hanger and Brooks, the appellee herein, for two hundred and forty dollars; but brought against Brooks alone, by virtue of a certain agreement, the nature of which will appear further on. The complaint alleges that the said Hanger and Brooks, as partners,, cultivated plaintiff's farm during the year 1865; that after-wards, upon the dissolution of the partnership and the adjustment of the business thereof, the said parties, as between themselves and said Brooks, had not paid the money due for the use and occupation of the plaintiff’s farm, the same being one of the debts so agreed to he paid by the said Brooks.

Defendants answered that the cause of action had accrued' more than three years before the commencement of the action, whereby the action was barred.

The plaintiff replied, that since the accruing of his cause of action, to wit: On the 22d of May 1867, the defendant agreed in writing,by his attorney, in fact, to pay all the debts of said' partnership. He further replied that, within three years after: the cause of action accrued, he instituted suit thereupon, in the Pulaski circuit court, against the said Hanger and one Rogers, and prosecuted the same to judgment against Hanger, hut dis-missed as to Rogers, he having bankrupted, and that he commenced this suit within one year next after the termination of said suit. To said replications the defendant demurred. The demurrer was sustained and judgment rendered against plaintiff for costs, from which judgment plaintiff appealed to the-Pulaski circuit court. The case was heard on the same pleadings in the circuit court, demurrer sustained, judgment against plaintiff, and he appealed to this court.

The only questions to be considered, are questions of law the demurrer admitting the facts of the replications as therein pleaded. "We have therefore only to consider as to whether the-agreement of the appellee, Brooks, by his agent, or the action against Hanger and Rogers had the legal effect to suspend the operation of the statute of limitation as to this cause of action. "We will first consider the agreement. It was entered into by Brook’s agent, whose duty it seems to have been to. transact his business, generally, in his absence. It evidenced an assumption of all the debts and obligations of the partnership, the plaintiff’s debt being one of them. Are these facts, tinder the law, sufficient to constitute an acknowledgment of the debt, or a promise to pay it.

The authorities, in relation to questions growing out of the statutes of limitation, are somewhat conflicting. The statutes themselves are a meagre outline of the law. The rules relative to their construction and application are numerous. Let us endeavor to ascertain such as may be applicable to the case at bar, following the hitherto pretty strict construction given to these statutes by this court. To suspend the operation of the statute of limitation against a debt, or to remove the bar, when it once attaches by limitation, there must be an acknowledgment of the debt or a promise to pay it. If it bean acknowledgment simply, it must be express and to the effect that the debt is due at the time. If it be a promise, that also must be express and pre-supposes an acknowledgment. The acknowledgment or promise must clearly identify the debt; must identify it with such certainty as will determine its character and the amount due. Ringgold and Hynson v. Dunn, 8 Ark. 499; State Bank v. Alston, 9 Ark. 455; Brown v. State Bank, 10 Ark. 135; Bebee v. Block, 12 Ark. 768; Grant v. Ashley, 12 Ark. 764; Cook v. Martin, 29 Cowen, 65; Buckingham v. Smith, 23 Con. 455. Like all other acknowledgments and promises, having legal force and sanction, they must be made to a party in interest; to the person to whom the debt is due, or one authorized to act for him, and with the intent at the time to pay it. Roscoe and wife v. Hale et al., 7 Grey (Mass.) 275; Wakeman v. Shuman, 5 Selden (N. Y.) 91; Clark v. Maguire’s ad’mr. (35 Penn.) 260; Kenner v. Krull and wife, 19 Ill. 190. When so made, within the rules above indicated, the law presumes that the party making them, have assumed anew their obligations, if the statutes have not attached the bar; but if the bar has already attached, the law presumes a new undertaking, and yet the assumption anew of the obligation, or the-new undertaking, as the case may be, has reference alone to-the statute bar, and cannot be made the foundation of the-action. Let us apply the above rules to the ease under consideration: The agreement was replied to suspend the operation of the Btatute. Had it such effect? The agreement was entered into by Rogers, as agent for Brooks, with Hanger, Brooks’ former partner. It obligated Brooks to pay all debts due from the partnership of Hanger & Brooks; but it nowhere or in any manner specified or pointed out plaintiff’s debt. This was certainly necessary to bring the agreement within the rules above indicated, and to give it the character of an acknowledgment of, or promise to pay the debt, to make it legally binding upon Brooks. But what makes the agreement still more worthless, if possible, as an acknowledgment of or promise to pay Ringo’s claim, was, that it was entered into with a stranger and not with the plaintiff or his agent. It was, therefore, in no respect an acknowledgment or promise, within the law, and would not have the effect to prevent the running of the statute against plaintiff’s account.

We will next consider the effect of the action as pleaded in plaintiff’s second replication. '

It appears that Hanger and Rogers had formed a partnership to cultivate plaintiff’s farm in 1865. After commencing work thereon, Rogers quit the partnership and Brooks took his place, and the business was carried on during the rest of the year by Hanger and Brooks. The action was instituted against Hanger and Rogers, the latter, not as an agent of Brooks, but in his individual capacity, and was dismissed upon the suggestion of his bankruptcy. It appears, also, that it was commenced after the dissolution of the partnership of Hanger and Brooks. Sojhr then as this action is concerned, that action is to be considered as against Hanger alone. The inquiry suggested is, did that action suspend the running of the statute, as against plaintiff’s claim against Brooks? We are clearly of opinion that it did not, for there was no privity between Brooks and Hanger in that suit, and therefore there could be no privity between Brooks and Ringo. Brooks being not a party to it, the judgment against Hanger in no respect renewed Brooks’ obligation to satisfy Ringo’s claim.

Binding no error in the judgment of the court below, the same is affirmed.