author: Frank Holt, Justice.

text:
    Howard J. SCROGGINS v. Claude R. BOWEN

      5-5442

    464 S. W. 2d 79
    Opinion delivered February 22, 1971
    [Rehearing denied March 29, 1971.]

      Ovid D. Switzer, Bruce Switzer and Tim Tanner, for appellant.

      William E. Johnson, for appellee.
   Frank Holt, Justice.

This is an action brought by appellee to impress a lien upon the sale proceeds from appellant’s rice and soybean crop.

Appellee entered into an oral contract with appellant to perform farm labor. The contract provided that appellee would assist in planting and harvesting a crop of rice and beans to be grown by appellant. As part of the consideration under the contract, appellee was to receive, in addition to his salary and other specified benefits, a bonus consisting of a set amount on each bushel of rice and on three-fourths of the bushels of beans harvested. Sometime in early November after the crop was harvested, appellee left his employment. Appellant, insisting that the employment was prematurely terminated under the contract, notified appellee that he had forfeited his right to the bonus. Shortly thereafter appellee filed in circuit court an affidavit and notice of laborer’s lien for $1,429 pursuant to Ark. Stat. Ann. § 51-S01, et seq. (1947). Appellant later filed a petition for, and was granted, a dissolution of the lien upon substitution of a $1,500 bond. Thereupon, appellee instituted in chancery court this action which resulted in a decree for appellee impressing a laborer’s lien for $1,419.40 on the proceeds of the sale of the crop. This appeal comes from that decree.

In his first two points for reversal, appellant contends that the chancellor erred in refusing to grant his motion to transfer to circuit court because: (1) Appellee has a complete and adequate remedy at law; and (2) appellee had already commenced an action in circuit court involving the same subject matter. The second part of this contention may quickly be disposed of by pointing out that appellee, by simply filing an affidavit and notice of lien in circuit court, did not thereby commence an action.

Likewise, we find the first portion of appellant’s contention to be unconvincing. Whether a court of equity has jurisdiction over the subject matter of an action is determined from the allegations of the complaint. Hamilton Depositors Corp. v. Browne, 199 Ark. 953, 136 S. W. 2d 1031 (1940). In the case at bar, the complaint alleges that appellee is entitled to a specific portion of the sale proceeds of the crop, and it seeks to impose and enforce a lien on those proceeds. Granting the relief sought is within equity’s power. McGehee Planting Co. v. Jones, 239 Ark. 966, 395 S. W. 2d 553 (1965). Furthermore, this court has expressly held that in situations such as the present, suit may be brought in equity to recover proceeds. Barrett v. Nichols, 86 Ark. 58, 107 S. W. 171 (1908).

Appellant, however, argues in effect that since bond was posted in circuit court, appellee had a sure and efficient remedy in law for damages. There is authority that where an adequate remedy at law in fact exists, then denial of a motion to transfer would constitute reversible error despite the fact that the chancery court concurrently had jurisdiction over the subject matter of the action. Sledge-Norfleet Co. v. Matkins, 154 Ark. 509, 245 S. W. 289 (1922). In the case at bar, appellee initially brought his action against appellant and Portland Bank, the party-defendant depository of the proceeds from the sale of the crop. Part of the relief requested in appellee’s complaint was the imposition of a constructive trust on these funds held by the bank. As we view the record, sometime after appellant’s initial motion to transfer and a subsequent renewal of that motion, Portland Bank was dismissed as party-defendant. After this dismissal, appellant did not assert anew his motion to transfer.

Although some legal remedy may be accessible, the modes of relief afforded by equity are usually better adapted to the type of case presently before us; and the remedy at law, therefore, would not be “adequate” in the technical meaning of that word. See 30 C. J. S. Equity § 25. Impressing a lien and imposing a constructive trust certainly constitute a more appropriate remedy than an action in law for damages. While Portland Bank was still a party-defendant, the relief of imposing a constructive trust on the sale proceeds was available and provided a more complete remedy; the chancellor, therefore, did not err in denying appellant’s motion to transfer to the circuit court. After Portland Bank was dismissed, appellant failed to renew his motion to transfer and thereby waived any objection to the propriety of the chancellor’s discretion in retaining jurisdiction over the case. Higginbotham v. Harper, 206 Ark. 210, 174 S. W. 2d 668 (1943); Schuman v. Sanders, 200 Ark. 540, 140 S. W. 2d 121 (1940).

As we understand his third and final point for reversal, appellant is contending that the chancellor’s finding that appellee is entitled to the bonus was against the preponderance of the evidence. We do not agree. Appellant attempted to establish that it was the intent of the parties to the oral contract that appellee’s employment should extend to the end of December. To substantiate this assertion, appellant testified that it was customary for such employment to continue until the last of December and that it was his own custom to make payment of bonuses in the latter part of that month. One of appellant’s former employees testified that he received his bonus around Christmas, but admitted on recross-examination that he would have felt entitled to a bonus even if he had terminated his employment immediately after the harvest.

Appellee stated it was his understanding that the contract would be completed and he would be entitled to the bonus at the end of the “crop year.” Corroborating testimony was also adduced from a rice and bean farmer from the same area. He supported appellee’s position that this contested bonus agreement, used by some of the local farmers, became effective when the crops were harvested. He also stated that the farming community considered the harvest to be the end of a “crop year.”

A decree of the chancery court will not be reversed where there is a disputed question of fact unless the findings are against the preponderance of the evidence. Hunter v. Dixon et al, 241 Ark. 725, 410 S. W. 2d 389 (1966). In Munn v. Rateliff, 246 Ark. 609, 446 S. W. 2d 664, we said:

“* * * [T]he chancellor had the opportunity to see and hear the witnesses in evaluating the evidence which was in conflict. In such a situation our rule is that when the evidence is conflicting and evenly poised or nearly so, the judgment of the chancellor on the question of where the preponderance of the evidence lies is considered as persuasive.”

Similarly, in the case at bar, deferring to the judgment of the chancellor who was in a superior position to determine the credibility of the witnesses, we cannot say as a matter of law that his findings were against the preponderance of the evidence.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    E. W. HOOD v. Carl F. WELCH et al
    5-5466
    463 S. W. 2d 362
    Opinion delivered February 22, 1971

      Howell, Price, Howell & Barron, for appellant.

      Reinberger, Eilbott, Smith & Staten, for appellees.
   Frank Holt, Justice.

This is an action brought by appellant-lessor to recover $115,400.00 from appellees, lessee and his successor corporation, for damages resulting from a fire in the leased building. From an order of the court granting appellees’ motion for summary judgment comes this appeal.

Appellant owned a building in Pine Bluff which he leased to appellee Carl F. Welch for “general automobile repair work, storage and automobile paint and body work.” Welch took possession and utilized the premises as a body and paint shop. The building was not insured prior to the leasing, nor did the lease agreement make provision for any insurance arrangement. Welch agreed to indemnify appellant for damage or loss caused by his violation of any law and to deliver the premises at the end of the lease in the same condition as received, the usual wear and tear excepted. The lease then provided: “It is agreed that the Lessee shall not be liable to restore any damage caused by fire, windstorm or any other casualty beyond his control.”

During the tenure of the lease, one of Welch’s employees was working at the body and paint shop with a spray gun when its petcock blew out and began discharging gusts of compressed air which knocked over a five-gallon can of paint thinner. The thinner apparently came into contact with the flames of a nearby gas heater which resulted in a fire damaging the entire building.

Appellant filed suit against Carl F. Welch and Welch Motor Company (which had been organized as corporation successor to the business of Carl F. Welch the individual) for damages to the leased building and resulting loss of rent. His complaint alleged that ap-pellees operated the paint shop in a manner violative of the Pine Bluff fire ordinances and the state fire prevention code and that they were grossly and willfully negligent in so doing. It further asserted several other incidents of ordinary negligence on the part of appel-lees for various alleged acts of carelessness. Appellees answered by denying all allegations and by contending that the fire was unavoidable. After the filing and answering of requests for admissions and other interrogatories, appellees moved for summary judgment in that the lease is the only document executed and contains all the agreements entered into between the parties; that the lease specifically exempts the lessee from liability for fire; and that the complaint does not allege that the fire was intentionally caused. After some final amendments, requests for admissions, affidavits and other pleadings, including appellant’s response to the motion for summary judgment which asserted that there still remained several relevant and unresolved questions of fact, the trial court granted appellee’s motion and dismissed the complaint.

Basically appellant contends on appeal, in his first three points for reversal, that the lease did not relieve the lessee from liability for fires caused by: (1) ordinary negligence; (2) gross negligence or (3) violations of law. The third part of this contention is based upon the following provision of the lease:

9. Lawful Uses: The Lessee agrees to indemnify the Lessor against any damage or loss that may be caused by Lessee violating any laws,

This provision, by its very subtitle, appears to relate only to any illegal use, purpose or function that the premises may be put to which could incur penal sanction. However, even if the alleged violations of the city fire ordinances and state code are construed to come within the intended scope of the above provision, nevertheless, proof of such violations would constitute no more than mere evidence of negligence requiring further proof of proximate causation. Bussell v. Missouri Pacific RR. Co., 237 Ark. 812, 376 S. W. 2d 545 (1964). It follows then that the pivotal provision of the lease is:

It is agreed that the Lessee shall not be liable to restore any damage caused by fire, windstorm or any other casualty beyond his control.

Thus, appellant’s first three points for reversal may be reduced to the simple assertion that the lease does not exempt appellee from liability for fire damage caused by his own ordinary negligence or, a fortiori, that caused by his gross negligence.

Both parties rely heavily upon the annotation of 15 ALR 3d 786, particularly § 7. The cases compiled therein all involve leases with similarly worded liability exemption provisions and contain various arguments for including, or not including as the case may be, fires caused by negligence within the general "fire” exemption. However, perhaps the most pertinent aspect of that annotation is to be found in § 2 wherein it is stated:

[WJhere the clause is not explicit, the decision on whether it nevertheless exempts the landlord or the tenant from liability for fire due to his own respective negligence are divided, depending on whether the language of the lease and the surrounding facts indicate that such was the intention of the parties, [emphasis added]

In the case at bar, the lease is ambiguous as to whether the "fire” exemption extends to all fires, or all non-intentional fires, or to all non-intentional fires caused by ordinary but not gross negligence, or to only unavoidable or avoidable but non-negligently caused fires, or merely to fires beyond the lessee’s control. Appellee argues that in the event of ambiguity, the uncertain terms should be construed most strongly against the person drafting the instrument; however, it appears disputed between the parties whether appellant unilaterally devised the lease or whether it was a product of negotiation. Furthermore, on motion for summary judgment doubtful language in a written instrument is to be construed in favor of the party resisting the motion, in this case the appellant. Brooks v. Renner & Co., 243 Ark. 226, 419 S. W. 2d 305 (1967). The significance of the failure of either party to insure the premises or to provide in the lease for its insurance may also constitute a fact question which bears upon the intention of the parties. Quite obviously there remain relevant and unresolved issues of fact.

Judgment should be summarily entered only if the evidence, considered in the light most favorable to the party resisting the motion, presents no genuine issue as to any material fact. Griffin v. Monsanto Co., 240 Ark. 420, 400 S. W. 2d 492 (1966); Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646 (1964). In other words, summary judgment, even if requested by both parties [see Wood v. Lathrop 249 Ark. 376, 459 S. W. 2d 808], cannot eliminate genuine issues of material facts, but can only be implemented to decide questions of law. Browning v. Hicks, 243 Ark. 394, 420 S. W. 2d 545 (1967). Furthermore, we have specifically held that if doubts exist which render the meaning of a written instrument ambiguous, there then arises an issue of fact to be litigated which precludes summary judgment. Brooks v. Renner & Co., supra.

The material fact issues in the instant case could probably be effectively circumvented, and thus rendered immaterial, simply by determining as a matter of law that any fire exemption clause contained in a lease, unless otherwise specifically qualified, extends to or includes all fires except those intentionally occasioned. Although the various rationales asserted (15 ALR 3d 812 — 814, § 7 [a]) for so including fires caused by negligence of any degree appear to be quite persuasive, we think that such a policy determination is not permissible in the present circumstances. We are reluctant to find an intent on the part of one party to bind itself for the negligence of the other, unless that intent is unequivocally manifested. See, e. g., Paul Hardeman, Inc. v. J. I. Hass Co., 246 Ark. 559, 439 S. W. 2d 281. Whether or not the parties intended to include negligently caused fires within the exemption provision is a question of fact which must yet be determined at a trial on the merits.

In his fourth and final point, appellant argues that appellee Welch Motor Company should not be dismissed as a party defendant. Appellees, however, readily admit that "the successor corporation is accountable for any contingent liabilities of Carl F. Welch the individual” and thereby render this point moot in the circumstances of the case at bar.

The granting of the motion for summary judgment is reversed and the cause remanded.

Harris, C. J., not participating.

Fogleman, J., concurs.

Byrd, J., dissents.

John A. Fogleman, Justice,

concurring. I concur because I believe the pertinent contract clause to be clear, unequivocal and unambiguous. So far as material here, it simply relieves the lessee from liability for a fire beyond his control. If, by the exercise of ordinary care, the fire could have been prevented, lessee is liable. The matter seems just that simple to me.


author: Compton, J.

text:
    Grider, et al., v. Williams.
    The affidavit in a proceeding by attachment may be taken before a commissioner for Arkansas in another State.

      Appeal f rom Jackson Circuit Court

    lion. L. L. Mack, Circuit Judge.
    Watkins & Rose, for appellants. •
    The court below conceived that a commissioner of deeds could not take the affidavit for an attachment. The law could not be plainer. See ch. 32 Dig., secs. 1 and 2; also, Lafferty v. Lafertg, JO Ark., 268.

      Stillwell & "Wassell, for appellee.
    As long as Edmondson v. Carnall, 17 Ark., 284, is recognized as the law of the land — and it has stood too long to he overruled upon slight grounds — there is no doubt that the plea is good. The proceeding -by attachment must stand or fall upon its conformity to the statute giving the remedy; and it may fairly be inferred that the Legislature never intended to permit a party, availing himself of the extraordinary benefits of this proceeding, to depart from the/mode of taking the affidavit prescribed by the statute giving the remedy; because, if such affidavit be false, the party would be beyond the reach of punishment; and, too, the affidavit would necessarily he anterior to the issuing of the writ, and the defendant, though absent from the State when the affidavit was made, might be a resident at the time of issuing the writ.
    Garland & Nash, for appellee.
    We insist .on these propositions:
    1. The attachment law must be construed strictly, and the court cannot cure a departure in the proceedings from the law. 2 Eng., 358; lb., 359; 18 9a., 283.

    2. No one could administer the affidavit here except a judge, justice of the peace, or clerk within the State, as prescribed in the attachment law. Sec. 4-, eA. 17, 9ould’s Dig.; 10 Ark., 268; Edmondson v. Carnall, 17 Ark., 284-

    3. The act creating commissioners gave them no authority to take such affidavits; they can take affidavits only to carry out the mere purposes of their office, which are entirely and altogether foreign to any thing growing out of or connected with attachments. Sec. 9, p. 808, Eig.

    4. The act creating these commissioners cannot be construed as repealing or amending the attachment act in this respect, the latter being a general and the former a special act. 2 Ewarris, 533; Sedgwick on Construction, 123-129.

   Compton, J.

The only question in this case is, whether the, affidavit in a proceeding by attachment may be taken before a commissioner for Arkansas in another State.

Our statute prescribing the mode of procedure in cases of attachment in the circuit courts, provides that the affidavit may be taken before any judge or justice of the peace within this State, and that the attachment may be issued by any clerk, with whom the affidavit may be filed, in the same manner as if it had been taken before such clerk. Gould’s Dig., chap. 17, sec. 4. Subsequently, the act of December 19,1846, was passed, authorizing the appointment of commissioners for Arkansas, which provides that the Governor may appoint, in any other State or Territory of the United States, one or more commissioners, “ who shall have power to administer oaths and affirmations, and to take depositions, affidavits, and the proof and acknowledgment of deeds, or other instruments of writing, under seal, to be used or recorded in this State;” and that “all oaths administered by the said commissioners, all affidavits and depositions taken by them, and all acknowledgments, &c., aforesaid, certified by them, shall be as effectual in law, to all intents and purposes, as if done and certified by any justice of the peace, or other authorized officer, within this State.” It is insisted by the counsel for the appellee that the ■statute authorizing proceedings by attachment must be strictly construed, and that where special power is conferred on a commissioner, created by statute, he cannot act outside of that power. Admitting these propositions to be maintainable, they have no bearing upon the question under consideration. The language employed in the act of December, 1846, is broad and comprehensive, empowering the commissioner to take affidavits generally, which are to have the same effect as if taken before an authorized officer within this State; and this in no wise affects the act concerning attachments, further than merely to provide for an additional officer before whom the affidavit may be taken. Upon any rule of construction that may be applied, it is obvious that the commissioner had authority, under the before-mentioned enactments, to take the affidavit in question. Lafferty v. Lafferty, 5 Eng., 268; Fergus v. Hoard, 15 Ill., 360.

True, in Edmondson v. Carnall, 17 Ark., 284, & plea iu abatement, that the affidavit in attachment was not taken before any judge, justice of the peace, or clerk of any of the circuit courts within this State, was held good on demurrer; hut in that case, the act of December, 1846, was not referred to in the argument, and was no doubt overlooked by the court — otherwise the plea, we suppose, would have been held bad, as it did not exclude the presumption that the affidavit was taken before a commissioner.

The result is that the court below erred in sustaining the defendant’s demurrer to the plaintiffs’ replication; for which error the judgment must be reversed, and the causé remanded for further proceedings.


text:
    Jacobi v. Pfar & Kammer.
    A mistake or inaccuracy in a bill of particulars not calculated to mislead the defendant, will not be deemed material.
    A bill of particulars, which indicates the transaction out of which the plaintiff’s demand arises, and which could not mislead the defendant, is sufficient, although it does not specify the technical description of the right which has accrued to the plaintiff; as where the bill of particulars charges the defendant with certain property, evidence may be given that he had received it as a warehouseman from the plaintiff, had sold it and failed to pay over the proceeds arising from the sale.

      Error to Pulaski Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.

      Stillwell & Wassell, for plaintiff.
    The object of a bill of particulars is to apprise the opposite party of the nature of the claim, so there can be no surprise. Broxon v. Williams, J Wend., 368. And its effect is to confine the range of proof. 1 Hall, 379; 17 Wendell, 88; 8 Arch., 199; 3 Star Me Mo., 1057. Proof of property received will not support counts for money had and received, and money pai'd out and expended. Miller v. Alcorn, 3 Bibb, 867.

   Compton, J.

In this case — which was an action of assumpsit — Pfar & Kammer recovered judgment against Jacobi in the court below.

The plaintiffs declared for goods sold and delivered, and for money had and received, and filed a bill of particulars, as follows:

Henry Jacobi, Little Bock, Arkansas,

1861. • To Pfar & Kammer, Dr.

January 10. To one phaeton top buggy, - - $225 00

“ “ Prince Albert do., - - 220 00

“ “ open buggy, - - 120 00

$565 00

Mar. 8. Or. by cash,. - 200 00

Balance, - $365 00

The evidence introduced by the plaintiffs shows that the buggies, mentioned in the bill of particulars, were shipped by them on the 10th of January, 1861, to Jacobi, for ~W. B. Cox & Bro., Little Bock, Arkansas, who refused to take them, and that they remained in the possession of Jacobi, who, after-wards, sold them and paid the plaintiffs $200, leaving abalance against him of $865. To the introduction of this evidence the defendant objected, because the plaintiffs had made no-claim, for money had and received, in their bill of particulars, which raises the only question presented for the consideration of this court.

Conceding the rule tobe, that the particulars of the plaintiffs7 demand are considered as incorporated with the declaration, and that the plaintiffs cannot give evidence outside of them, it is, nevertheless, equally well settled, that, as the object of this strictness is to apprise the opposite party of what will be attempted to be proved against him at the trial, a mistake or inaccuracy in the bill of particulars, not calculated to mislead or deceive him, will not be deemed material. Thus, in Brown v. Hodgson, 4 Taunton, 189, the plaintiff declared for goods sold, and for money paid, and delivered to the defendant a bill of particulars : “ To 17 firkins of butter, £55 6s.” The evidence was, that Payne sent the butter to London, consigned to Pen, by the hands of Brown, a carrier, who, by mistake, delivered it to Hodgson, and he appropriated it to his own use. Pen had paid Payne for the butter, and Brown, admitting the mistake he had made, paid Pen the value. It was insisted that the plaintiff could not go into evidence under the count for money paid, because the bill of particulars specified no such claim; but the court ruled otherwise, and held that the plaintiff was entitled to recover, upon the evidence, on the count for money paid, Mansfield, C. J., remarking that the bill of'particulars sufficiently expressed to the defendant that the plaintiffs’ claim arose on account of the butter, and that bills of particulars' should not be construed with all the strictness applicable to declarations. So, in the case before us, we do not think the defendant could have been misled. The bill of particulars indicated the transaction out of which the plaintiffs’ demand arose, and that was sufficient, without specifying the technical description of the right which accrued to the plaintiffs.

Judgment affirmed.


author: Clendenin, J.

text:
    Mohr, et al., v. Sherman, ad.

    If an administrator sue in his representative character, his declaration must show that he does so, and nothing by intendment can be taken to supply the want of such an allegation.
    If the cause of action accrued to the intestate, the administrator should sue in his representative capacity; but if the contract was made with the administrator — aswhereanoteismadeto “A. B., administrator, &c.” — he may sue either in his fiduciary capacity, or in his individual right, treating the words “administrator, &e.,” as a personal description.
    Where the declaration commences “A. B., administrator, &c., complains,” &c., and charges the execution of a bond to “the plaintiff,” and the breach does not negative payment to him as administrator, and no proferí of letters is made, the plaintiff will be considered as suing in his individual capacity.
    Where the plaintiff sues in his individual capacity, and the summons is to answer to him “as administrator,” &c., there is such a variance as will justify a plea in abatement.
    This court will not interfere with the discretion of the circuit court in permitting an amendment of the declaration, after plea in abatement, so as to correspond with the writ.
    In regard to amendments, this court has uniformly encouraged the exercise of a discretion tending to the furtherance of justice; but where errors have occurred through the carelessness of the pleader, the discretion should be carefully exercised; and if amendments are allowed, they should be upon reasonable terms.
    Where an amendment is allowed on the motion of the plaintiff, it is error to adjudge the costs of the motion against the defendant.

      Error to Columbia Circuit Court.

    Hon. John T. Bearden, Circuit Judge.
    Carleton and Garland & Nash, for plaintiffs in error.
    The plea in abatement was well pleaded, and should have been sustained. The defendant in error conceded this, in asking permission to amend. In Anthony v. Beebe, 2 Eng., 447, it was held that, after plea, the motion to amend the writ came too late. Since that case, it has been held that the court might permit the writ to be amended, on motion, at any time before judgment on the plea; hut all these amendments were to supply some omission, mistake or misprision of the clerk. No case has gone further.
    Amendments, ex vi termini, mean the alteration of the same thing or cause, not the substitution of another. Though statutes of amendments ought to receive a liberal construction, amendments “ ought to be so allowed as not to operate as a surprise, either in matters of law or fact, and always on notice to the party to he affected by them.” Mitchell v. Conley, 13 Ark., 414', 13 Ark., 539. Amendments must correspond to the nature of the action brought; must be made in apt time and upon terms; 4 Eng., 448; and it was error, therefore, in permitting an amendment changing the character of the plaintiff; and also, in rendering judgment against the defendants for the costs of the plaintiff’s amendment.
   Clendenin, J.

This .is a writ of error to Columbia circuit court. The case is this: The plaintiff in the court below filed his declaration in debt, on a writing obligatory, in the name of “John Sherman, administrator, with the will annexed of John Franklin, deceased,” averring the promise to pay and the refusal to pay “to the plaintiff'.” A writ of summons was issued in due form, requiring the defendants to answer “ John Sherman, as administrator, with the will annexed of the estate of John Franklin, deceased.” Upon the return day of the writ, the defendants filed their plea in abatement, because of a variance between the writ and declaration; after the filing of the plea in abatement, the plaintiff moved to amend his declaration, which motion was sustained, and a judgment rendered “that the plaintiff recover against said defendants all his costs in and about said motion to amend in this behalf expended;” to which proceeding and judgment the defendants excepted. The plea in abatement (without issue) was then submitted to the court and overruled, and judgment for costs against the defendants. To which defendants excepted, and defendants declining to plead over, final judgment was rendered for the plaintiff, and defendants filed their bill of exceptions and prosecute their writ of error.

It is now the rvell settled law of this State that, if a plaintiff sue in his representative capacity, his declaration must show -that he does so; and nothing by intendment can be taken to supply the want of such an allegation. Sabin, ad., v. Hamilton, 2 Ark., 485. If the contract was made, or the bond or note executed, to the intestate, in his lifetime, the action should be brought in the representative capacity; where the suit is brought on a contract made with the administrator or executor, and the bond or note is given payable to A. B., administrator, &c., he may elect to treat it as a debt due in his fiduciary capacity. Hemphill v. Hamilton, 11 Ark., 425; or he may bring the suit in his individual right, treating the words “ administrator, &c.” as a personal description. Lassiter v. Obin, 11 Ark., 450.

Testing the case before us by the law as thus decided, the original declaration filed in this case must be treated and considered as a suit instituted by the plaintiff in his individual character, and that the words “administrator, &c.,” are but a personal description, and that the plaintiff’ so intended it, and the law will so construe it; because the declaration avers the making and delivery of the bond, and the promise to pay to him as plaintiff’, and the breach does not negative the non-payment to him as administrator, but to him as plaintiff, nor is profert made of letters of administration.

If this suit was then instituted in the name of the plaintiff in his personal right, the writ of summons should have corresponded with it, and the defendants should have been so summoned, but the writ commands that the defendants be summoned to answer John Sherman,' as administrator of John Franklin, deceased, “in-a plea that they render unto said plaintiff which they owe and unjustly detain from the plaintiff, to the damage of the plaintiff.”

The suit being instituted in the name of the plaintiff, in his individual character, the summons to answer him in his representative capacity was incorrect, and the plea in abatement was well interposed; and we must, therefore, now consider the action of the circuit court in the disposition of that plea.

The plea in abatement being filed, the plaintiff, with the leave of the cpurt, amended his declaration, and the declaration as amended, in the commencement, the statement and the breach, made the suit then stand as a suit in the representative character of the plaintiff.

Our statute of amendments is very broad and comprehensive, and gives to the circuit courts a very large discretion, and with that discretion, when properly and legally exercised, we have no disposition to interfere. Where amendments are allowed to correct clerical errors or omissions, we would not interfere, because the uniform tenor of the decisions of this court has been to encourage that discretion which is exercised for the furtherance of justice; but where the errors have occurred through the carelessness of the pleader, we think the discretion should be carefully exercised; and where the amendments are allowed for such errors, they should be upon terms more favorable to the defendants than were granted in this case. And while we are not prepared to say that there was error in permitting the plaintiff to amend his declaration so as to correspond with the writ, we think the better practice would be to dispose of the plea in abatement.

This court, in the case of Anthony v. Beebe, 7 Ark., 447, distinctly ruled that the motion to amend must be made in apt time, and if not made before the defect is pointed out by a plea in abatement for that cause, it cannot be made afterwards so as to defeat the plea; but this decision has, in effect, been overruled by the ease of McLarren v. Thurmond, 8 Ark., 314, and Anthony v. Humphries, 11 Ark., 664, and directly, by the case of Mitchell v. Conley, 13 Ark., 419; and the question as to the amendment is left to the sound discretion of the circuit court, as it was before the case of Anthony v. Beebe.

But while we do not find that there was error in permitting the amendment, we are satisfied that the judgment for the costs of the amendment against the defendants was illegal. The judgment should have been against the plaintiff, and he should have been taxed with the costs of his own error. For this error this case must be reversed, and remanded to the circuit court, with directions to that court to permit the defendants to plead to the merits, if they desire to do so.


author: Walker, C. J.,

text:
    Hill, ad., v. Fellows.
    Defendant, in replevin, pleading property in himself, the burden of proof rests upon the plaintiff to show a right of action in himself.
    Under the 44th section of the replevin act, the defendant, upon a finding in his favor, is entitled to a judgment for return of the property replevied; but under the 45th section, he may waive that right and take judgment for the value of the property, and in such case it is the duty of the jury to find its value, for which the judgment is given in damages.
    The waiver of the right to have a return of the property need not appear of record — the acceptance of a verdict for its value is, in effect, an election by the defendant.
    It is a settled rule of this court that, upon a question of preponderance of evidence, the verdict of a jury will not be set aside.

      Appeal from Ouachita Circuit Court.

    Hon. C. Thrower, Special Judge.
    Brown & Carleton, Garland & Nash, for appellant.
    There was no fraud in the contract in this case; the contract between the plaintiff and Chase was a bona fide contract; the plaintiff advanced the money to purchase the articles replevied, and which were sold under an execution against Chase, who was in fact the owner of the property; on a-verdict for the defendant the judgment should have been for a return of the property and damages for the detention,’ so that the plaintiff might have relieved himself by a return of the property; an election by the defendant, on a verdict i'n his favor, to have judgment for the value of the property, instead of its return, must appear of record.
    English & Wilshire, for appellee.
    The verdict and judgment are, in legal effect, correct.
    The defendant, in replevin, where the property has been delivered to the plaintiff, has the right to elect, on the trial, to take a verdict for the value of the property, instead of a return of it; and, on making this election, the jury ascertain and render a verdict in his favor for its value; the form of the verdict may well be in damages, as the action is ex delicto. Gould’s Dig., eh. 1J¡£, see. J¡5. It is not necessary that the election of the defendant to take judgment for the value of the property, instead of its return, be entered of record — his acceptance of the verdict for the value is. sufficient.
   Walker, C. J.,

This is an action of replevin, brought in the Ouachita circuit court, by James D. Hill, against Daniel W. Fellows, for various articles of merchandise, used for carriage making.

After the commencement of the action James D. Hill died, and the suit was revived in the name of the present plaintiff, Andrew J. Hill, his administrator. The defendant plead property in himself, upon which issue was taken, and the cause submitted to a jury, who, after having heard the evidence, returned a verdict for the defendant, and assessed his damages at $1,800. The plaintiff' moved for a new trial, which was overruled, and final judgment was rendered in favor of the defendant, from which the plaintiff appealed.

It has not been our misfortune to encounter a more confused and imperfect record than this. Taking it altogether, we may, however, find enough to enable us to decide the very few questions presented for our consideration.

There is no question of law, upon the main point argued by counsel, open for the consideration of the court. No exceptions were taken to the evidence, nor to the instructions given by the court (if, indeed, any were given). The question contested was one of fact. The defendant had pleaded property in himself. The plaintiff, in order to recover, should show that the property was his. This was a question of fact, submitted to the jury upon the evidence adduced. The only additional question before them was the value of the property, or amount of damages, and about this there was no contest. Upon a careful review of the testimony, we are satisfied that there was evidence strongly conducing to prove that the contract, under which Hill claimed to hold the property, was fraudulent and void, intended and contrived to hinder and prevent the creditors of Chase & Bro. from reaching the property. Whether, from the weight of the evidence, such was the case, is not for us to determine. It is a settled rule of this court that, upon a mere question of preponderance of evidence, the verdict of a jury will not bo set aside.

As regards the assignment of error, which questions the sufficiency of the verdict, it is true, as contended by the appellant’s counsel, that the defendant,-under the 44th section of the replevin act, would have been entitled to a return of the property, if such had been his wish; but under the 45th section, Dig., 909, he may waive that right, and take judgment for the value of the property replevied out of his possession; and in such case it is the duty of the jury to find the value of the property replevied, and the judgment is alone for the value of the property in damages.

In this case.no formal waiver of right is noted upon the record, without which it is contended, for the appellant, that it was irregular to have rendered such verdict. In this we think counsel are mistaken. It was a matter of discretion and privilege conferred upon the defendant to have judgment for the property, or the value thereof, in the alternative; or, under section 45, to take a verdict and judgment for the value of the property. The very fact that the defendant has accepted such a verdict is, of itself, in substance and effect, an election, which is, after all, a matter with which the plaintiff has nothing to do. It is such a verdict as the law authorizes to be rendered against him. The verdict was for the sum of $1,800, a sum less than that which the goods replevied were proven to be worth. Of this the defendant does not complain; and surely the plaintiff has no cause to complain.

In view of the several provisions of the statute, and the rights of the defendant under them, we think the verdict is sufficient.

Judgment affirmed.


author: "Walker, C. J.

text:
    Amis v. Cooper.
    Where suit was brought before a justice of the xieace, and an appeal taken, it was not error in the circuit court to refuse the defendant leave to file a set-off, none having been filed before the justice.
    The defendant in such case could not prove any matter of set-off, because there was no set-off on file.

      Appeal from Dallas Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.
    Gallagher & Newton, for appellant.
    The set-off not having been pleaded before the justice of the peace, proof of a set-off was incompetent in the trial before the circuit court. Gould’s Dig., eh. 99, sec. 196.

   "Walker, C. J.

This is an action upon account in a justice’s court. No set-off was filed before the justice, and, upon the trial, judgment was rendered in favor of Amis, from which Cooper appealed to'the circuit court.

When the case came up for. trial in the circuit court, the defendant, Cooper, moved the court for leave to file a set-off", which motion the court overruled. Upon the trial, Amis proved his account and rested; whereupon the defendant offered in evidence a paper proven to be in Amis’ hand-writing, in which the items of his own account were set out, and at the foot of the account, credited by sundry items of account and a note against him. Amis objected to the introduction of the paper as evidence, because no set-off had been filed, and because there was no evidence of the circumstances under which this paper was -written, nor the purpose or use to be made of it. But the court overruled the objection, and, sitting as a jury, received the evidence, after which the court decided in favor of the plaintiff, and rendered judgment in his favor for $323.

There can be no question but that the court erred in permitting the paper to be read in evidence, because, no matter how clearly it might have proven the indebtedness of the plaintiff for the items credited, still, unless the defendant had filed his set-off in proper time under the statute, there was no issue before the court to which the evidence could apply.

It was not error in the circuit court to refuse permission to file the set-off in the circuit court, none having been filed before the justice. To have done so would have changed the issue tried before the justice, and been in violation of the statute. Dig., sec. 196, page 681.

Judgment reversed, and the cause remanded for further proceedings.


author: Walker, C. J.

text:
    Clark v. Latham.
    It is a well established rule that, where an issue of either law or fact upon a plea in abatement of the writ is found for the defendant, the judgment is that the writ be quashed.
    Where a plea in abatement in attachment is filed, and the demurrer thereto overruled, the judgment should be final; and if the court improvidently grant the plaintiff leave to reply, the replication may be stricken out.
    A plea in abatement should be framed with the greatest accuracy and precision, and certain to every intent; and so a plea in abatement in attachment, denying that the bond was approved by the clerk before it was issued, is not sufficient. It should have described the bond as the attnehment bond. So, a plea that the sureties are insolvent, is bad — they may have been solvent when the bond was executed.

      Quere. Can the sufficiency of such sureties bo questioned, under any circumstances, by plea in abatement ?
    A plea that the writ was not signed by the clerk with Ms own proper hand, nor by his lawful deputy, held bad. The writ would have been good if signed by his name by another, under his direction and in his presence, and sealed and sent forth as his act.
    A plea that the writ was not signed by the clerk, as required by law, held good.

      Appeal from Sebastian Circuit Court.

    II011. A. N. Hargrove, Circuit Judge.
    'William Walker, for tire appellant.
    The right of a plaintiff to withdraw his demurrer to a plea in abatement or in bar, after it was overruled, and to reply, where the application to do so was in apt time, has never before been questioned in this State. This court has, in numerous instances, recognized the right of the plaintiff to withdraw his demurrer to a plea in bar and reply; and it would be an anomaly in pleading to deny a party pleading to the merits the same' advantage given to one pleading a dilatory plea, not favored in law. See Payne v. Bruton, 1 Pig-, 278, and 1 Chit. Plead., ra. f. 500, where it is stated that a plaintiff has been allowed to withdraw his demurrer to a plea in abatement and reply. The right of the court to grant the plaintiff leave to reply, after his demurrer was overruled, will hardly be questioned by this court. The replications were responsive to the pleas, and not nullities, and could not be stricken out on motion. 5 Ark., 141; 4 Ark., 455; 1 Png., 196.

    But, if the court did not err in striking out the replications, the ease must be considered as standing upon the demurrer to the pleas. And it is clear that they were informal and uncertain. Normal defects in pleas in abatement are reached by general demurrer, 7 Png., 369. In such pleas form is substance. 24 Ala., 329. They are to he construed strictly, and are required to be certain, so as to exclude every conclusion against them. 4 Png., 388; 1 Ch. PL

    DuVal & King, for appellee.
    The pleas contained sufficient, if properly pleaded, to abate the appellant’s suit and quash the writ of attachment; and the demurrer admitted all the facts.
    The court could not, after overruling the demurrer of the appellant to the pleas in abatement, grant leave to reply. The only judgment in such a case is that the writ he quashed. 16 III., 306; 2 Gilman, 69; 20 III., 330; 1 Ch. PL, 106.

   Walker, C. J.

This is an action of debt, by attachment, to which several pleas in abatement were filed, for an alleged insufficiency of the writ and of the attachment bond. To these pleas demurrers were filed and overruled. It appears, from the record, that the plaintiff' was given leave to reply, and did, on the same day, file several replications to each of the pleas in abatement. At a subsequent day of the term, the defendant moved the court to strike the' replications from the files, and to render final judgment in his favor, upon his pleas in abatement; which motion was sustained by the court, the replications stricken out, and final judgment rendered in favor of the defendant, and for costs. The plaintiff excepted to the opinion of the court, made the replications part of the record, and appealed.

The appellant contends that the judgment of the court below, upon liis demurrer, was not necessarily final; and that, unless under extraordinary circumstances, it is the duty of the court, after demurrer overruled to a plea in abatement, to permit the plaintiff to reply to it; and that the court, in this instance, having granted such leave, under which replications were promptly filed, it was error, upon the motion of the defendant, to strike them from the files and render final judgment against her.

After a careful examination of most of the English cases, upon the authority of which the common law rule of practice seems to have been established, as well as of several American decisions in affirmance of the common law rule, we have been unable to find in any of them a satisfactory reason for holding that, where the judgment upon a plea in abatement is for the defendant, final judgment must as of right be rendered in accordance with the prayer of the plea. So to hold, certainly militates against the rule which disfavors dilatory pleas. Yet we find, upon looking into the authorities, that it is a well-established rule of the law, from which the American courts have not departed, that where an issue of either law or fact, upon a plea in abatement, is found for the defendant, the judgment is that the writ be quashed. Tidd’s Practice, 642; Stephen on Pleading, 107; Archbold’s Civil Pleading, 315; Chitty’s Pl., vol. 1, 466; McKinstry v. Pennoyer, 1 Scam., 319; Motherel v. Beaver, 2 Gillman, 69; Cushman v. Savage, 20 Ill., 330; Eddy v. Brady, 24 Ill., 306. And, so absolute is this rule, that it has been held, that it is error to grant leave to reply after demurrer to a plea in abatement overruled. 1 Scam., 319; 2 Gillman, 69.

Iii the State of Alabama, by statute, the rule has been changed. Skinner, Judge, who delivered the opinion of the court in Eddy v. Brady, remarked that he could see no good reason why, upon principle, where the demurrer is overruled, the judgment should be final, and the plaintiff should not be allowed to take issue upon the truth of the plea; but that, in the absence of a statute changing the practice, the courts were not at liberty to depart from it.

Upon examination of our statute, we find no provision under which this rule may be relaxed.- And in accordance with the authorities cited, we must hold that, in this case, leave to the plaintiff to reply was improvidently granted, and that it was-not error in the court below to strike them from the files and render final judgment for the defendant.

The replications having been disposed of, the plaintiff must be considered as resting upon her demurrer, as though no leave to reply had been asked.

The next question for our consideration, therefore, is as to the sufficiency of the several pleas in abatement.

The first and third pleas are intended to’ question the sufficiency of the attachment bond. The first denies that the bond was, at the time of filing the plaintiff’s declaration, approved by the clerk before the writ of attachment issued. The plaiutiff contends that the averment should have been, that the attachment bond had not been approved, &c., and that a statement that the ub'ond” had not been approved, was not sufficiently certain to bring it within the rule laid down by this court in Moss v. Ashbrooks, 12 Ark., 369, in which it is held that a plea in abatement should be framed with the greatest accuracy and precision, and certain to every intent. Under this rule, nothing is to be left to implication or intendment, and the plea should have described the bond ' as the attachment bond, and for this defect is held to be insufficient.

The averment in the third plea is, that the securities in the attachment are insufficient, and are insolvent.

This plea is clearly insufficient, because, apart from the question, whether the sufficiency of the security can be questioned, by plea in abatement, under any circumstances, by this plea, for aught that appears, the securities may, at the time the bond was executed, have been solvent and sufficient, and have since become insolvent. The plea avers that they are not (that is, at the time of pleading) solvent; and for this defect the third plea will be held demurrable.

The second plea avers that the writ of attachment was not signed by the clerk, as required by law; and the fourth plea presents, substantially, the same question. The fifth plea is, that the writ was not signed by the clerk, xoith his own proper hand, nor by his lawful deputy. This may be all true, and yet if the clerk directed another to sign his name to the writ, in his presence, and for him, and he, the clerk, should thereupon affix his seal of office to it, and send it forth to be executed as his act, although the name was not signed with his own proper hand, we should hold it to be valid. Thus considered, the demurrer should have been sustained to the fifth plea.

The remaining pleas, the second and fourth, are well pleaded, and the court did not err in overruling the demurrers to them, and in rendering final judgment thereon.

Judgment affirmed.


text:
    Fesmire, et al., ads., v. Brock.
    Where a declaration by administrators does not show a eause of action accruing to them in their representative capacity, the action must be considered as brought in their individual right.
    It is error to proceed to trial with one of several pleas, good and valid, unanswered.
    Where two persons own land, and one of them rents it by a written lease, lie . alone has the legal interest in the contract, and it is not admissible in evidence in a suit brought by the administrators of both owners — the contract being a chose in action passed at the death of the lessor to his administrator, alone.

      If a written lease be made by two joint owners of land, and one die, tlie right of action survives to the other, and on his death passes to his administrator, and not to the administrators of both.

      Appeal from Independence Circuit Court.

    Hon. Richard H. Powell, Circuit Judge.
    Cox, for the appellants.
    The farm was held by the brothers in joint tenantcy, and therefore the act of one in reference to the joint property was, as to the rest of the world, the act of both. 1 Wash. Beal Prop., ch. IS, secs. 11, IS, 13; 4 Blent, marg.p. 359; SO Ark.,381. Rufus Stone, in renting the joint property, acted both for himself and his joint tenant (who are tenants in common under our statute); and they, and on their death their representatives, should join in an action concerning their joint property. Gould’s PL, eh. 4, sec. 5S, 56 and n. 5; 1 Ch. PL, IS.

    The omission to enter replication and issue to the pleas is cured by the statute of amendments; Gould’s Pig., ch. 133, sec. 113; and the omission will be supplied by this court, that justice may be done.
    Watkins & Rose, for the appellees.
    The action was improperly brought. It should have been-brought in the names of the administrators of the survivor alone. Such is the rule in all actions ex contractu. 1 Ch. PL, 19, SO; 17 Ark., S50; 1 Parsons on Con., 31. The objection of misjoinder of plaintiffs may betaken at any time. 1 Ch. PL, 13; 19 Ark., 671.

    The action for use and occupation must be founded on a contract, and cannot be supported unless there be a contract expressed or implied. Birch v. Wright, 1 IB., 387; S Baund. on PL and JSv., 888, 889; Ch. on Con., 331. And if there be a written contract, it must be produced, and the action can only be in the name of the party making it. SS Ark., 158; 1 Ph. Pm., p23; Ch. on Con., 3S9.

      The plea of the statute of limitations was confessed, as no-replication was filed to it.
   Walker, C. J.

This is an action of assumpsit for the use and occupation of a farm which is described as the “land and appurtenances of the plaintiffs, held by the defendant at the special instance and request, and by the sufferance and permission, of the plaintiffs.” In none of the several counts is there disclosed any contract or agreement with Jefferson and Rufus Stone, or either of them. There is no breach that the rent was not paid to them in their life-time; but the breach is that no payment of rents was made to the plaintiffs;, no profert of letters of administration was made ; in truth, nothing whatever to show that there was a cause of action accruing to them in their representative capacity. When such is the case the action must be considered as brought in the individual right of the plaintiffs, as held by this court in Hemphill v. Hamilton, 11 Ark., 425; McDonald v. Williams, 16 Ark., 36.

Pleas of non-assumpsit and limitation wfere filed, to which there was neither joinder nor replication. The case was thus submitted to a jury, when it appeared in evidence that the defendant rented the land of Rufus Stone, evidenced by a written contract entered into between Rufus Stone and the defendant alone. It appeared in evidence, further, that Jefferson Stone died before Rufus did, but whether before the contract for rent with defendant, is not shown. The land rented was known as the farm of Jefferson and Rufus Stone.

This brief statement of the facts we think fully sufficient to-a proper understanding of the- questions of law material to be considered.

Under instructions from the court the jury found a verdict for the defendant. The plaintiffs moved the court for a new trial, which was overruled, and final judgment rendered for defendant, from which the plaintiffs appealed.

There are several grounds, either of which would, in our opinion, be fatal to the plaintiffs’ recovery.

It was error to have proceeded to judgment without an issue upon the plea of limitation. That plea was a bar to the action, unless upon issue it should appear not to he true. This case is clearly distinguishable from that of Dorris v. Grace, 24 Ark., 326, in the facts and the finding of .the jury.

There was no evidence whatever conducing to show that the defendant was indebted to the plaintiffs, or either of them, in the right and capacity in which they sued. The written contract for the rent of the farm was made between Rufus Stone and the defendant, Brock. It was a chose in action which passed at the death of Rufus Stone to his administrator, and which, in order to-a recovery against the defendant, should have been declared upon as a contract made with Stone in his life-time. Jefferson Stone’s representative had no legal interest whatever in the contract, and should not have been joined in the action. Even if there had been no written contract for rent, and the land had been rented by both Jefferson and Rufus Stone, as joint tenants, still, as-Jefferson died first, the right of action would have survived to Rufus Stone alone,1 and not jointly with the administrator of Jefferson Stone. Ghitty says, that “where one or more of several obligees, covenantees, parties or others, having a joint legal interest in the contract, dies, the action must be brought in the name of the survivor, though the deceased alone might be entitled to the beneficial interest in the contract.” 1 Chitty Pl., 19.

But even if the suit had been brought in the representative capacity of the plaintiffs, as the contract to rent was with Rufus Stone only, the plaintiffs- could not recover, because the proof in this respect must correspond with the count or the plaintiff' will be non-suited. Burr v. Rose, 17 Ark., 250.

From this view of the ease it is evident that the plaintiffs .were not entitled to recover.

Judgment affirmed.


text:
    Rogers, ad., v. Glascock.
    Justices of tlio peace liave jurisdiction concurrent with the circuit courts, in actions by attachment, where the sum demanded exceeds one hundred dollars and does not exceed two hundred dollars.

      Error to White Circuit Court.

    Hon. Richard H. Powell, Circuit Judge.
    B. I). Turner, for plaintiff in error.
    It is submitted that the circuit court erred in overruling plaintiff’s demurrer to defendant’s fourth plea, which raises the question whether a justice of the peace has jurisdiction in attachment cases where the sum in controversy exceeds one hundred dollars, and we think the question is easily and plainly answered in the affirmative by sections 8 and 18 of art. VII. of the Constitution, by 'which the jurisdiction of justices of the peace, under the laws in force on the 4th March, 1861, was extended.
    English & ‘Wilshire, for the defendant.
    The jurisdiction of justices of the peace, in cases by attachment, was conferred by statute and limited to one hundred dollars. See Gould’s Eig., ch. 16. The remedy by attachment is an extraordinary one, harsh and severe, and in derogation of the common law, and must-be strictly pursued. The present • Constitution extends the justice’s jurisdiction in matters of contract, but did not intend to extend the remedy by attachment, or it would have been so expressed. This remedy is given by statute, and the statute must be strictly followed.
   Compton, J.

The plaintiff in error recovered judgment against the defendant before a justice of the peace, in a proceeding by attachment, on a promissory note for the sum of $118^$j-;, whereupon, the defendant appealed to the circuit court, and there interposed six special pleas to the proceeding. A motion to strike out was sustained, as to the fifth and sixth pleas, and overruled as to the others. The plaintiff then demurred to the pleas not stricken out, and the demurrer was sustained as to the first, second and third pleas, but was overruled as to the fourth, and the plaintiff declining to plead further, final judgment was rendered against him, and he brought error.

The only question legitimately presented for our determination arises upon the demurrer to the fourth plea, and that question is: Did the justice of the peace have jurisdiction of the sum in controversy?

It is provided, by section 8, art. VII., of the new Constitution, that “the circuit courts shall have original jurisdiction in all matters of contract where the sum in controversy is over two hundred dollars;” and section 18 provides that “justices of the peace shall have original jurisdiction in all matters of contract where the amount claimed does not exceed two hundred dollars, and concurrent jurisdiction with circuit courts where the amount claimed exceeds one hundred dollars,” and that “for the foregoing purposes they shall have power to issue all necessary process; ” and the last clause of the Constitution declares that “ all laws in force in this State on the 4th day of March, 1861, are still in force, not inconsistent with the provisions of this Constitution.” Of the laws in force on the 4th of March, 1861, was the act of the Legislature conferring the jurisdiction and remedy, by attachment, on justices of the peace, in matters of contract, where the sum demanded did not exceed one hundred dollars. This act was not inconsistent with the Constitution, except so far only as it limited the jurisdiction to sums not exceeding one hundred dollars. The effect, therefore, of the several provisions of the Constitution, above quoted, is not only to continue the act in force, but also to enlarge the jurisdiction by extending it to all matters of contract, where the sum demanded is not more than two hundred dollars; and we think- this extension of jurisdiction necessarily carries with it the remedy by attachment provided for in the enactment.

It follows that the court below erred in overruling the plaintiffs demurrer to the defendant’s fourth plea, for which error the judgment must be reversed, and the cause remanded for further proceedings.


text:
    Bell v. Clegg.
    The ownership of the soil on a navigable stream does not necessarily entitle the owner to a public ferry franchise. He can exercise no such privilege until the right to do so is conferred by the proper authority.
    The provisions of the statute providing for the collection of an annual tax on ferry privileges, which have been granted, must not be understood as denying to the county court the power to discontinue a ferry franchise when the public interest demands it. Lindsay v. Lindley, SO Ark., 573 — does not assert the contrary.
    A., being the owner of the north bank of the river, obtained a license to keep a ferry. B., the owner of the south bank, having previously obtained a license to keep a ferry at the same place, leased the ferry privilege of A. for five years. At the expiration of the lease, the county court refused to ■ renew the grant to A., but did so afterwards. Whereupon, A. filed a bill claiming one-half of the profits of B.’s ferry from the time of the expiration of the lease until the renewal of the grant. Held: That the bill was properly dismissed.

      Quere. Where rival ferries are in operation at the same place, established on opposite banks of the river, has the owner of one ferry the right to take passengers from the bank on which the ferry of the other is established?

      Appeal from Arkansas Circuit Court in Chancery.

    lion. William M. Harrison, Circuit Judge.
    Clark, Williams & Martin, for appellant.
    When the county court established Roane’s ferry privilege and granted him a license, the franchise ■was established, and became a vested right and interest, and did not cease to exist upon the mere failure or refusal of the county court to renew the license. Lindsay v. Lindley, SO. Ark., 573. Roane had a vested interest in the franchise, which was property, and was, unquestionably, within the protection of 'law. And Clegg having used it, up to the filing of the bill, and having received and appropriated to'himself all the profits, was liable to account to Roane for it.
    Rice, for appellee.
   Compton, J.

This cause comes before us on appeal from the chancery side of the Jefferson circuit court.

The material allegations of the bill may he stated, substantially, as follows: In January, 1853, the complainant became the owner and took possession of the north bank of the Arkansas river, opposite the city of Pine Bluff, where the public road crosses said stream. Prior to January, 1853, a public ferry from the south bank of the river was established, at the before-mentioned crossing, under a license granted by the county court to the owner of the south bank, and was put into operation, whereby the said owner and those claiming under him enjoyed, and continued to enjoy, under an annual grant of license for that purpose, exclusive ferry privileges, until the 1st of January, 1857, when the county court granted to the complainant a license to keep a public ferry from the north bank of the river, at the same point; whereupon, the defendant, who was then the owner of the south bank, and whose ferry had been previously established, leased from the complainant his ferry privilege for the term of five years, commencing the 1st day of January, 1857. At the expiration of the lease — in January, 1862 — the county court,-on application of the complainant, refused to grant him a license for the further exercise of ferry privileges. In January, 1866, the complainant again obtained a license. The defendant, in the mean time, continued to keep his own ferry in operation, taking on passengers from the north as well as the south bank of the river, and appropriated the entire receipts to his own use.

The bill claims that the complainant is entitled to one-half of the profits arising from the operation of the defendant’s ferry, from 1st of January, 1862, to 1st of January, 1866 — being the period between the termination of the lease and the reissuance of license to the complainant — and prays that the same may be decreed to him.

On demurrer the bill was dismissed for want of equity.

In support of the claim of the appellant, it is insisted that, by reason of his proprietorship and possession of the north'bank of the river, and the grant to him of a license in January, 1857, he was entitled, thenceforward, to equal ferry privileges with the appellee, at the point indicated, notwithstanding the county court refused to issue him a license in January, 1862; and that the defendant, by transporting passengers from the north bank of the river, used the privilege of the complainant, for which he ought to account. We do not assent to this proposition. The ownership of the soil does not necessarily entitle the owner to a public ferry franchise. He can exercise no such privilege until the right to do so is conferred by the proper authority. This court said, in Murray v. Menefee, 20 Ark., 561, that “a ferry franchise -is the creature of sovereign power, and no one can exercise it without the consent of the State.” This is too well settled by the authorities to admit of discussion. The-Legislature, with a view to the public convenience, has conferred on the county court the power to grant ferry privileges. By the 7th and 11th sections of the act, it is provided that any person wishing to establish a ferry, shall apply to the county court, and on showing that he is in possession of the land where the ferry is sought to be established, and that its establishment will promote the public convenience, the court shall grant him a license for the term of one year. Sections 15,16 and 17 provide that when the license has been so granted, and the ferry once established, it shall be the duty of the county court to levy a tax on the privilege annually thereafter, whether application for a renewal of the license be made or not; and that it shall be the duty of the clerk to issue, annually, a license, and deliver it to the sheriff, for the person to whom the privilege was granted; who, on presentation of the license, is bound to pay for it. These last-mentioned sections of the act, and others immediately following, relate more especially to the mode of taxing the privilege, and must not be understood as denying to the county court the power to discontinue a ferry franchise when the public interest demands it. In Lindsay v. Lindley, 20 Ark., 573, it was decided that where two public ferries had been established at the same place, the question of public convenience was no longer an open one between the owners of the respective ferries, subject to investigation on the occasion of each annual grant of license therefor; or, in other words, that the one owner could not afterwards insist that the ferry of the other should be discontinued because the public convenience did not require both. But in that case, the court distinctly waived any expression of opinion as to whether the county court, from considerations affecting the general good alone, had the power, under the statute, to discontinue one or both of the ferries, no such question being then before the court. The question, however, is now presented, and we do not hesitate to hold that the county court, when the public welfare requires it, undoubtedly has the power to discontinue a ferry franchise, by refusing the annual license for its further exercise. Why, or under what circumstances, the court refused to issue a license to the appellant, we are not informed; nor is it material to inquire, since the decision of the county court, however erroneous, could not be reviewed in this proceeding. The appellant, when he obtained a license, in January, 1857, did not establish and put in operation a ferry at the place designated, but leased his mere naked right to do so to the appellee, who already owned a ferry at the same point; and this right, upon the termination of the lease, ceased to exist, by action of the county court, leaving no foundation for any claim whatever .against the appellee. Besides, we are. not prepared to admit, that, where rival ferries are in operation at the same place, and on opposite sides of the river, the owner of the one has no right, under our statute, to take passengers from the bank on which the other is established. A fair construction of ‘the statute would seem to lead to a different conclusion; but as a decision upon this point is not necessary to a determination of the case before us, the question is left open.

Decree affirmed.


text:
    Fletcher v. Hutchinson.
    In a proceeding by petition to foreclose a mortgage on land, the petition should state whether there is any occupant of the land or not; and if there is an occupant he should he made a defendant.
    A copy of the deed relied on in a petition to foreclose a mortgage must he filed as an exhibit.

      Appeal from Jefferson Circuit Court in Chancery.

    Hon. William M. Harrison, Circuit Judge.
    Watkins & Rose, for appellant.
    Rice, contra.

   Clendenin, J.

Robert Hutchinson filed his petition in the circuit court in chancery, to foreclose a mortgage executed to him by Read Fletcher, to secure the payment of two promissory notes. There is no averment in the bill as to the occupancy of the mortgaged premises, nor is a copy of the deed of mortgage referred to in the bill, attached to the bill as an exhibit. Fletcher demurred to the bill: 1st, because the complainant in his bill fails to disclose whether the mortgagor, or any other person or persons, is the occupant of the lands described in said deed of-mortgage; 2d, because he fails to make an exhibit .of. the deed-of mortgage relied on in his bill of complaint. The demurrer was overruled and a final decree rendered, subjecting the lands to the payment of the debts. From this decree Fletcher appealed.

The first point made by the demurrer in the court below, and by the assignment of error in this court, is one that was fully considered and decided by this court in the case of McLain & Badgett v. Smith, 4 Ark., 244. In that case, Chief Justice Singo, in delivering the opinion of the court, says:- “The object of the petition is to foreclose a mortgage upon real estate, but the mortgagor alone is made a party defendant to the suit, and the petition is wholly silent as to the actual occupiers of the land, although the statute is imperative that it shall embrace and be against both the mortgagor and the actual occupiers; nor is there even an attempt to justify or excuse the omission to proceed against the actual occupier, or to warrant the conclusion that the premises were unoccupied. If they •were occupied, there can be no doubt that, in proceedings under the statute, the occupant, -without any regard to his "interest in the subject-matter of the litigation, was a necessary party to the suit; because the statute has so declared, and its injunction can not be disregarded; and until he was legally before the court, as a party to the proceedings, no valid judgment or decree could be pronounced in favor of the petitioners; and if there wras, in fact, no occupant of the lands, or if they were in the actual possession of the mortgagor, that fact should appear in the petition. And the omission to make the actual occupier a party, without showing some adequate reason therefor, would, in such cases, not only be a ground of demurrer, but a valid objection to any decree against the mortgagor, even at the final hearing.

Treating the case now before us as a proceeding under the statute to foreclose a mortgage, and inferring to the bill, we find the same objections to exist, and that the complainant in the bill has failed to disclose whether the mortgagor, or any other person, is the occupant of the lands described 'in the deed of assignment, and for that reason, we think that the demurrer should have been sustained to the bill.

The other point made by the demurrer, and the assignment of error, is that the complainant failed to make an exhibit of the deed relied on in his bill. The 48th section of chapter 28 of the Digest, declares that: “If either party shall rely on any record, deed or writing, the substance thereof shall be stated in his bill, answer of plea, in the same manner as is required in pleading at law, and he shall file with his bill, answer or plea, as exhibits, an authenticated copy of such record, and a true copy of such deed or writing, and hold the original subject to the order and inspection of other parties in term time, if within his power.” The complainant in the bill, in this case, relies on his deed of mortgage, and consequently he was bound by the statute to have filed a true copy of the deed with his bill; Brodie, et. al., v. Skelton, 11 Ark., 121; and having failed to do so, the demurrer, for that cause, should have been sustained.

Upon these grounds this cause is reversed and remanded to the court below, with directions to that court to sustain the demurrer to the bill, and to permit the complainant to amend his bill.


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    Vance, et al., v. Gaylor, et al.

    In a proceeding by eevtiorari from the circuit court to tlie comity court, unless error appears on the face of the record, the circuit court must affirm.
    In a proceeding in the county court to contest an election, the notice is the foundation of the action, and serves the double purpose of writ and declaration.

      The county court has no jurisdiction over the subject of a contested election for t-lie office of county judge and school commissioner.
    The contest for each office is distinct and-separate, between different parties, forming separate and distinct causes of action, and can not be united in one notice, and made a joint action upon which one trial and judgment can be rendered.

      Appeal from Conway Circuit Court.

    Hon. Liberty Bartlett, Circuit Judge.
    Moore, for tlio appellants.
    The “ notice in writing,” required by the statute to be served on the opposite party, in contested election cases, amounts in effect to a declaration and writ; and if defective in substance as a declaration, or in its service as a writ, must be fatal to the party relying on it. The service in, this case was clearly defective.
    Clark, Williams & Martin, also for appellants.
    The notice was not sufficient to -bind the parties to appear before the county court, and therefore, the judgment of that court was illegal, and the circuit court erred in not quashing the proceedings.
    The proceedings in the county court were unwarranted, because, when an election for several of the offices specified in the statute shall be contested, each contest is a separate and independent ease, and there can not be a joint action embracing several in the same notice; and because the notice in this case embraced two offices (those of county judge and school commissioner), over which the county court bad no jurisdiction whatever in a proceeding of this kind. -
   Walker, C. J.

The appellants presented their petition to the judge of the circuit court of Conway county, praying that a writ of certiorari be granted them to correct certain errors therein alleged to have been made, by the county court of Conway county, in the decision and judgment of that court, in the case of a contest for several .county offices, at an election lately held in that county, in which it was assumed that certificates of election had been awarded to the appellants, when in fact, by a proper canvass of the lawful votes of said county, the appellees had received a majority of the votes cast, and were entitled to the offices claimed by them respectively. In accordance with the prayer of the petition, a writ of certiorari was awarded, and in obedience to the writ, the records of the county court were brought before the circuit court for its consideration.

At the return term of the writ, the defendants appeared, and moved the court to quash the writ of certiorari for several reasons, which, taken together, were intended to question the sufficiency of the grounds set forth in the petition; that is, that the records of the county court showed no such error as could be inquired into in a proceeding by certiorari. The circuit court sustained the motion to quash the writ, and affirmed the judgment of the county court, from which judgment the appellants have appealed.

It is contended for the appellants :

1st. That there was no sufficient written notice given them by the contestants, as required by statute.

2d. That, as to part of the appellants, the county court had no jurisdiction of the matter, or authority in law to hear and determine upon the respective rights of the contestants.

3d. That several parties, having distinct and separate rights and causes of action, are improperly united in the same process and judgment.

In proceedings of this kind, the error complained of must appear upon the face of the record; and unless it thus appears, it was the duty of the circuit court to affirm it; because, unless in particular cases, as held in Carnall v. Crawford County, 11 Ark., 613, the common law practice in such cases will prevail, under which, the court should affirm the judgment,.unless there is apparent error upon the face of the record. Couch, ex parte, 14 Ark., 338; Lindsay v. Lindley, 20 Ark., 573.

It appears, from the county court record, that a county judge, a sheriff, a clerk, a county treasurer, and a school commissioner gave a joint notice to the several candidates for these several offices, and to whom certificates of election had been awarded, that, for causes set forth in-said notice, each of them would contest before the county court of Conway county their right to the office claimed by them respectively.

The appellants appeared befbre the county court and moved the court to dismiss the proceeding for the reason that no sufficient notice had been given them, which motion the court overruled, and, after having heard evidence for the claimants, decided and held that the contestants (the appellees in this case) were duly elected, and rendered judgment in their favor, accordingly, except as regards the office of sheriff.

The question as to whether the finding of the court was or not upon sufficient evidence, is not ¡raised under this proceeding. We can know' nothing of the facts upon which that court made its decision.

In a proceeding of this kind, the notice is the foundation of the action, and serves the double purpose of writ and declaration — that is, it brings the party before the court and contains the allegations to be tried and determined.

The first question presented for our consideration is: Had the county court power to review and set aside the decision of the traversers-appointed under the law to ascertain the result of the election? It is provided by statute that, when the election of any clerk, sheriff, coroner, county surveyor, county treasurer, or justice of the peace, shall he contested, it shall bo before the county court, upon notice, &c. Dig., sec. 90, page 478. No provision is made under that section for the trial of a contested election of a county judge, or of a school commissioner; nor under any other statute. It would seem, from the dates of the several acts, that, at the time that was passed, providing for the trial of contested elections, the office of county judge was not filled by the popular vote, and the act for the election of school commissioners had not been passed. It is evident, therefore, that the county court had no jurisdiction over the subject of the contested election of these two offices, and the judgment of the county court, as to them, was void.

Upon the remaining question, the sufficiency of the. notice, there can be no doubt that the contest for each office was distinct and separate, between different parties, forming separate and distinct causes of action, and could not properly be united in one notice, and made a joint action, upon which one trial and judgment could be rendered. This is a palpable error, apparent upon the face of the record, upon which no valid judgment could be rendered.

Such being the case, the circuit court should have quashed the proceedings upon said notice, and the judgment rendered thereon.

Judgment reversed.


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    Wadley and wife v. Harris.
    Wliere a declaration in replevin omits tlie averment tliat the goods “were to he delivered to tlie plaintiff,” &c., tlie defect is cured after verdict, under our statute of amendments.

      Appeal from Hot Spring Circuit Court

    Hon. Liberty Bartlett, Circuit Judge.
    Flana&in, for appellant.
    The appellant submits that the plaintiff, in his declaration, must set forth such facts as will show a right of recovery, and the want of such a showing can'be taken advantage of by motion in arrest. Sevier v. Holliday, 3 Ark., 513; Keith v. Pratt, 5 Ark., 661. In tliis action the remedy is given by the statute, and certain allegations are required to sustain the action. One of the most important of these allegations is omitted.
    'Witherspoon, for the appellee.
    The defect in the declaration is cured by the verdict. 3 Ark., 513; 5 Ark., 73; also by our statute of amendments. Gould’s P)ig.,p. 864.

   Walker, C. J.

This is an action of replevin, tried by a jury, upon the issues of non-detinet and property in defendant, who rendered a verdict for the plaintiff, upon which judgment was rendered. The defendant moved in arrest of judgment. His motion was overruled, and he has brought the case before us by appeal.

The only question presented for our consideration is : Was the declaration sufficient to warrant the verdict and judgment of the court? The particular defect pointed out and relied upon by counsel is, that there is no averment that the goods, alleged to have been delivered by the plaintiff to the defendant, ‘hvere to be delivered to the plaintiff when thereunto afterward requested.”

Conceding that this would have been cause for demurrer, we think that the defect, after verdict, is cured under our statute of amendments. The declaration presents a good cause of action defectively stated, and not a defective cause of action ; and, -when such is the case, every intendment is to be made in favor of the declaration. Whatever is implied, or is infer-able from the state of the pleadings, will be presumed in favor of the pleading and the judgment. Keller v. Henry, 24 Ark., 583; Knight v. Sharp, id., 610.

The motion in an-est of judgment was therefore properly overruled.

Judgment affirmed.


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    Mizell, et al., v. McDonald, et al.

    The defendant, after default, and upou inquiry as to damages, in an actum of assumpsit by attachment, has a right to introduce evidence in mitigation of damages.
    It is error to render judgment in an attachment suit against the surety in the bond for the release of the xu’operty attached.

      Error to Clark Circuit Court.

    lion. E. J. Searle, Circuit Judge.
    Elanagin, for the plaintiffs.
    The default admitted the plaintiffs’ right to some damages, but not. any particular amount. Thompson v. JTaislip, 14 Ark,., 8%0. It follows that the defendant may show that the charges are too high, that the liability was under a contract or agreement fixing a less amount, or that a portion of the charges are unsupported by the facts, as the maintaining of these several positions are entirely consistent with the legal admission that some damages are due.
    There was no declaration, motion, notice or appearance, as against the surety in the bond, for the release of the property, and the judgment against him was either erroneous or void. Cheek, et al., v. Pugh, 19 Ark., 574-

    Witherspoon, for defendants.
    The error in rendering judgment against the surety, in the bond given for the release of the property, is a mere nullity as to him, and no cause for reversal as to the defendants. Cheek, et al., v. Pugh, 19 Ark., 576.

    •The defendants below should have moved to set aside -the judgment nil dicit before they could come in and introduce evidence or object to the assessment of damages. Touchstone, et al., v. Harris, et al, SB Arle., 366.

   Walker, C. J.

This case comes before us upon a writ of error to the Clark circuit court.

McDonald & Co. brought an action of assumpsit, by attachment, against Baker & Mizell.' The writ of attachment was levied upon the property of the defendants, who entered into bond, as required by statute, for the release of the attached property. Having failed to defend the action, judgment by default was rendered against them-, and a writ of inquiry awarded to assess damages. Upon the trial before the jury for that purpose, the defendants offered to introduce evidence in mitigation of damages, but the court refused to permit them to do so.; to which opinion of the court the defendants excepted. The jury proceeded to render their verdict, and judgment was rendered thereon for the plaintiffs, against the defendants, and also against their surety in the bond given for the release of the property.

Two questions are presented for our consideration, the first of which is: Had the defendants a right, after default, and upon inquiry as to damages, to introduce, evidence in mitigation of the damages? The second, as- to the right of the plaintiff to take judgment against the surety in the bond given for the release of the property attached.

As regards the first question, the defendants, by failing to jilead in bar, confessed the plaintiffs’right to recover damages, but not the amount of damages claimed in the declaration; because, if such is the effect of a judgment by default, then there would be no necessity for calling a jury to inquire of damages, and judgment would, without the intervention of a jury, be rendered for the amount of damages set forth in the jilaintiffs’ declaration. It must therefore follow, that although the assumpsit to piay for the goods, averred to have been sold and delivered is admitted by the default, and no longer an open question for contest, such is not the case as regards the amount of damages to be recovered. In the case of Thomson v. Haislip, 14 Ark., 220, this court recognized this rule, and held that, upon a writ of inquiry of damages, the defendant had a right to cross-examine a witness introduced by the plaintiff, and that it was error to refuse such permission. And we think that, upon principle, the decision in that case is alike applicable to this. The open question before the jury was as to the amount of the damages to be assessed, and if the defendant bé permitted (as we have held he should be) to cross-examine a witness introduced by the plaintiff’, for the purpose of reducing the amount of damages, we think, for the same reason and upon principle, he should be permitted to introduce evidence for that purpose.

The counsel- for the defendants in error contends that, in order to let in such evidence, the defendants in the court below should, upon motion, have had the judgment by default set aside; in support of which he cites the case of Touchstone v. Harris, et al., 22 Ark., 365; but in that case, no question in regard to the admissibility of. evidence was raised. The right to assess damages was, in that case, controverted, not by the introduction of evidence to reduce the damages, but as to the right of the plaintiff to any damages — a fact which default admitted to be true, and upon which an interlocutory judgment had been rendered.

That it was error to render judgment against the surety on the bond for the release of the property attached, there can be no doubt.

Judgment reversed.