Atkinson v. Cox

• Decision Date: 25 April 1891
• Citation: 16 S.W. 124,54 Ark. 444
• Parties: ATKINSON v. COX
• Court: Arkansas Supreme Court

16 S.W. 124

54 Ark. 444

ATKINSON v. COX

Supreme Court of Arkansas

April 25, 1891

APPEAL from Jefferson Circuit Court, JOHN M. ELLIOTT, Judge.

Judgment affirmed.

J. M. & J. G. Taylor for appellant.

1. The court erred in refusing to allow plaintiff to amend his complaint. Mansf. Dig., secs. 5075 to 5084, and notes; 42 Ark. 57; 30 Ark. 396.

2. The act of 1885 gave appellant a lien for supplies advanced, and appellee is estopped to deny the right of appellant, his landlord, to enforce his lien. 2 Herm. on Estoppel, pp. 859 872, 1125; McAdam on Land and Ten., pp. 423-5; 11 S.W. 735 47 Ark. 269; 52 Ala. 155; Beach on Receivers, p. 695; 106 U.S. 468; Sedg. St. & Const. Constr., p. 73; Acts 1885, p 225.

N. T. White for appellee.

1. The court exercised a sound discretion in striking out the amended complaint. Mansf. Dig., secs. 5075-5084; 26 Ark. 360; Bliss, Code Pl., secs. 428-9; 30 Ark. 396. There was but one issue before the court, and that was whether the rent had been paid, and the court properly rejected all evidence as to supplies furnished, which is a separate action under Acts 1885, p. 225.

OPINION

HEMINGWAY, J.

The plaintiff brought action to recover a balance claimed to be due him on a note given for rent of a farm, and sued out an attachment in pursuance of the provision of the statute relating to landlord's liens. The defendant answered, admitting the execution of the note and alleging that it had been paid.

The cause regularly came on for trial, and, after a jury had been empaneled to try it, the cause had been stated, and the witnesses had been sworn, the plaintiff asked leave to file an amended complaint, alleging that the amount claimed was due for balance of rent and on account for surplus furnished in making the crop. The court refused to permit the amended complaint to be filed, and this is the principal error complained of. The only issue up to that time made by the pleadings was upon the defense that the note had been paid. The parties had prepared for trial upon that issue and upon no other. The defendant's liability upon account for advances had never been asserted. To have permitted the amendment, substituting another claim for the one originally sued on, would have entirely changed the issue, if it had not been the bringing of a new suit. If it be conceded that such change is within the statute regulating amendments, its allowance is within the discretion of the court, and under the circumstances of this case the discretion does not appear to have been abused.

There was no error in the court's refusal to charge the jury as requested by plaintiff. There was uncontradicted proof that the defendant had...