Austin v. Hemphill

• Decision Date: 12 April 1926
• Docket Number: (No. 297.)
• Citation: 282 S.W. 1
• Parties: AUSTIN et al. v. HEMPHILL.
• Court: Arkansas Supreme Court

Page 1

282 S.W. 1

AUSTIN et al. v. HEMPHILL.

(No. 297.)

Supreme Court of Arkansas.

April 12, 1926.

Rehearing Denied May 3, 1926.

Appeal from Circuit Court, Little River County; B. E. Isbell, Judge.

Suit by A. T. Hemphill against Cato Austin and another. From a judgment for plaintiff, defendants appeal. Affirmed.

This suit was commenced before a justice of the peace by A. T. Hemphill against Cato Austin to recover $180 alleged to be due him on account. The plaintiff also obtained a writ of garnishment against John Carlstead.

Omitting the style of the case, the body of the judgment in the justice court against the defendant reads as follows:

"Cause of action, open account for one hundred eighty ($180.00) dollars with accrued interest.

"Summons issued, returnable on the 17th of October, 1924, at 10 o'clock a. m. And on this day comes the plaintiff and defendant into court, and after hearing all evidence in case, judgment was given plaintiff for amount claimed."

The body of the judgment against the garnishee is as follows:

"Cause of action, open account for one hundred eighty ($180.00) dollars, summons issued, returnable on the 17th day of October, 1924, at 10 o'clock a. m.

"On this day comes the garnishee into court and testifies that he had one-half bale of cotton raised on his farm by said defendant, garnishee having sold said cotton for about fifty-seven dollars and paid the money to J. W. McCuller, after garnishment was served on him.

"Thereupon judgment was given the plaintiff against the garnishee for fifty-seven ($57.00) dollars."

The case was appealed to the circuit court.

According to the testimony of A. T. Hemphill, Cato Austin owed him $180, balance due for supplies furnished him.

J. F. Smith, the justice of the peace before whom the case was tried, testified that the defendant did not deny the indebtedness in his court, and that the garnishee admitted that he owed the defendant $57.

Cato Austin was a witness for himself and John Carlstead. According to his testimony, he had not sold his cotton at the time he left A. T. Hemphill's place, and turned it over to John Williams in settlement of his account. He never knew that A. T. Hemphill claimed any balance until he was sued in the justice court.

John Carlstead testified that he did not owe Cato Austin anything at the time the writ of garnishment was served on him. On cross-examination he admitted that he took charge of Cato Austin's cotton and had possession of it at the time the writ of garnishment was served upon him.

A. T. Hemphill, being recalled, testified that he sold the cotton which Cato Austin turned over to John Williams for him and gave him credit for the proceeds.

Counsel for Cato Austin and John Carlstead moved to dismiss the case in the circuit court because the account sued on was not filed in the justice court. There was a verdict in favor of the plaintiff, and judgment was rendered against Cato Austin for $187 and against John Carlstead for $57.

The case is here on appeal.

June R. Morrell, of Ashdown, for appellants.

DuLaney & Steel, of Ashdown, for appellee.

HART, J. (after stating the facts as above).

The first ground relied upon for a reversal of the judgment is that the circuit court erred in refusing to dismiss the plaintiff's cause of action for the reason that the justice court was without jurisdiction, and therefore the circuit court could not acquire jurisdiction on appeal. In making this contention, counsel relies upon section 6412 of Crawford & Moses' Digest and Little Rock Brick Works v. Hoyt, 112 S. W. 880, 87 Ark. 313, and cases cited. Section 6412 reads as follows:

"Ordinary actions shall be commenced by summons, but before the summons is issued the plaintiff shall file with the justice the account, or the written contract, or a short written statement of the facts on which the action is founded."

We cannot agree with counsel in this contention. In the first place, our statute regulating the practice in justice courts is for the benefit of the defendant, so that he may not be surprised, and to protect him from a second suit on the same ground. The plaintiff is required to indicate the matter upon which the claim is...