Aetna Casualty & Surety Co. v. State

• Decision Date: 03 October 1927
• Docket Number: (No. 200.)
• Citation: 298 S.W. 501
• Parties: AETNA CASUALTY & SURETY CO. v. STATE ex rel. COMMISSIONERS OF LITTLE CYPRESS DRAINAGE DIST. et al.
• Court: Arkansas Supreme Court

298 S.W. 501

AETNA CASUALTY & SURETY CO. v. STATE ex rel. COMMISSIONERS OF LITTLE CYPRESS DRAINAGE DIST. et al.

(No. 200.)

Supreme Court of Arkansas.

October 3, 1927.

Rehearing Denied October 31, 1927.

Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor.

Suit by the State of Arkansas on the relation of the Commissioners of Little Cypress Drainage District and another against the Ætna Casualty & Surety Company. Decree for plaintiffs, and defendant appeals. Affirmed.

Brewer & Cracraft, of Helena, and William M. Hall, of Memphis, Tenn., for appellant.

W. G. Dinning, of Helena, for appellees.

MEHAFFY, J.

This suit was brought by the appellee in the Phillips circuit court, the plaintiff alleging that T. D. Hunt, as principal, and the Ætna Casualty & Surety Company, as surety, executed and delivered, for a valuable consideration, its certain bond on that date to the state of Arkansas, whereby it agreed, among other things, that it would pay to the plaintiff the sum of $10,000 for the use and benefit of the commissioners of the Little Cypress drainage district or other parties interested in a certain suit pending in the Phillips chancery court wherein John M. Quarles was plaintiff and Little Cypress drainage district was defendant. The condition of said bond was that, in event the principal, T. D. Hunt, should be permitted to remove from the jurisdiction of the Phillips county chancery court a certain dredge outfit then located in Phillips county, Ark., and should be permitted to use and operate said machinery during the pendency of this suit, and in the event of the failure of said T. D. Hunt to return said machine within the jurisdiction of this court, in the event an order for such return should be made after the title to said machinery had been determined by legal proceeding, then and in that event, the said defendant agreed to pay the value of said machinery, as of that date, or the sum of $10,000 as liquidated damages for the failure to return same.

Said bond was duly executed and delivered in the registry of this court. Plaintiff further alleged that the title to said property had been adjudicated, and that the court had made a proper order to return said equipment within the jurisdiction of the court, and that the limit named in the order had expired. That said Hunt had failed and refused to return the equipment or any part thereof, and refused to pay the value thereof, and failed and refused to comply in any manner with the direction and order of the court, and had thereby breached the agreement, and that, by reason thereof, the Ætna Casualty & Surety Company was indebted to plaintiff under said contract in the sum of $10,000, for which sum he prayed judgment.

The defendant answered, denying the material allegations in the complaint. The defendant, Ætna Casualty & Surety Company, then filed a motion to transfer to chancery, but afterwards filed an amended answer. The defendant asked and was granted permission to withdraw its motion to transfer, and thereafter the court, on its own motion, set aside the order permitting the defendant-to withdraw said motion, and, upon the court's own motion, the cause was transferred to the chancery court.

We deem it unnecessary to set out the facts contained in the original case, but the facts in said case may be found in the opinion in Quarles v. Little Cypress Drainage District, 168 Ark 368, 270 S. W. 501, and the evidence in this case, as far as deemed necessary, will be set out in the opinion.

Appellant's first contention is that the circuit court erred in transferring the case to the chancery court, and that the chancery court erred in taking jurisdiction of the case and attempting to give relief therein in view of the shape the record was in at the time the transfer was made.

It appears from the record that this cause was transferred from the circuit court to the chancery court over the objections of the appellant. That order, however, was not appealed from, and the case was thereafter tried in the chancery court, there being no motion made by the appellant to transfer it from the chancery court to the circuit court.

This court said in a recent opinion:

"The record shows that, during the progress of the trial in the circuit court, over the objections of both parties, the case was transferred to equity. Both parties saved their exceptions to the action of the circuit court. The order of transfer from the circuit court to the chancery court discontinued the action in the former court, but continued it in the latter court until it was disposed of there either by trying the case or by transferring it back to the circuit court.

"If the order of the court is erroneous, it can be corrected upon appeal from the final judgment or decree in the case. Gilbert v. Shaver, 91 Ark. 231, 120 S. W. 833; Vaughan v. Hill, 154 Ark. 528, 242 S. W. 826; Nicholas v. Bright, 154 Ark. 1, 241 S. W. 33.

"When the case was transferred to the chancery court, no motion was made to transfer it back to the circuit court, nor were any objections or exceptions saved to the action of the chancery court in trying the case. Under these circumstances, the case must be treated as an ordinary action instituted in the chancery court and tried there by consent. By not objecting to the jurisdiction of the chancery court, the objection to the forum was waived. Columbia Compress Co. v. Reid, 160 Ark. 436, 254 S. W. 825; Ohio Galvanizing & Mfg. Co. v. Nichol, 170 Ark. 16, 279 S. W. 377." Hemphill v. Lewis, 294 S. W. 1010.

We deem it unnecessary to call attention to other decisions on this point because we think the recent case of Hemphill v. Lewis settles the question.

The parties tried the case in chancery court without making any motion to transfer it back to the circuit court, and thereby consented to the trial in the chancery court.

It is next contended that Quarles had no right to sue upon the bond. That it was payable to the state of Arkansas for the use and benefit of the commissioners of the Little Cypress drainage district of Phillips county, Ark. It will be remembered that the bond was given in a suit in the Phillips chancery court, wherein John M. Quarles and T. D. Hunt were plaintiffs and the Little Cypress drainage district was defendant. Hunt and Quarles were both parties to that suit. In that suit T. D. Hunt filed an application and motion for an order authorizing him to remove the drainage machine or dredge, located in the district, and it was alleged in that application that each of the plaintiffs, that is, Quarles and Hunt, and the defendant district were claiming title to said machine, and that it had been idle during the pendency of the suit, was depreciating in value, and should be put in use. And the court thereupon sustained the motion and made the following order:

"It is therefore adjudged and decreed by the court that upon the execution of a bond with surety to be approved by the clerk of this court in the sum of $10,000 to return said machine with fair compensation for its use or pay into court its value at this time, hereafter to be fixed, when the rights of the claimants are respectively adjudged, he, the said T. D. Hunt, will be authorized to remove said machine or dredge. The question of the title to the machine to be hereafter decided."

Hunt and Quarles and the drainage district were all parties and all present when the order was made, or, rather, they all agreed to the order. Hunt then filed the bond, and the bond, among other things, contained this provision:

"Whereas, J. M. Quarles has instituted a suit in the chancery court of Phillips county, Ark., against the commissioners of said drainage district, seeking to recover certain sums of money claimed by him to be due from said district, said cause being No. 4818;

"And whereas the above bounden T. D. Hunt has also instituted an action of a similar nature against said drainage district, which suit has been consolidated with the suit of said J. M. Quarles;

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