Chandler v. Lazarus

• Decision Date: 16 January 1892
• Citation: 18 S.W. 181,55 Ark. 312
• Parties: CHANDLER v. LAZARUS
• Court: Arkansas Supreme Court

18 S.W. 181

55 Ark. 312

CHANDLER v. LAZARUS

Supreme Court of Arkansas

January 16, 1892

APPEAL from Ouachita Circuit Court, CHARLES W. SMITH, Judge.

Judgment affirmed.

B. W Johnson for appellant.

1. In all actions for damages the plaintiff must have a preponderance of evidence. 1 Greenleaf, Ev., sec. 75; 2 Denio, 609; 51 Ark. 397. The preponderance is clearly with the appellant.

2. A new trial should have been granted for newly discovered evidence, original evidence, and not cumulative merely.

3. When a court of chancery takes jurisdiction for one purpose, it does for all. 1 Story, Eq. Jur., sec. 65; 2 Ch. Cas., 200-1. It was error to transfer to the law docket, thus cutting off material defenses.

4. It was error to entertain a demurrer after the jury had been empaneled and cause stated. Smith, Pl. & Pr., sec. 1021.

Bunn & Gaughan for appellees.

1. The verdict will stand unless there is no evidence to support it. 5 Ark. 407; 53 Ark. 166, 329, and many others.

2. The cause of action was purely legal, and the court properly transferred it to the law docket. Mansf. Dig., secs. 4925-8.

3. The objection as to the demurrer is made here for the first time. Not having been made below it is waived. Mansf. Dig., sec 5031. The cross bill was so defective that a demurrer could be filed at any time. 18 Ark. 304.

4. The appellant's cause of damage is distinct from that set up by appellees, and not even the subject of recoupment. 12 Ark 699; 16 id., 103; 10 Am. St. Rep., 92, and cases.

5. There was no showing that the newly-discovered evidence could not have been produced by reasonable diligence at the trial. Mansf. Dig., sec 5151, subd. 7. But the evidence was cumulative merely. 17 Ark. 404; 25 id., 380; 11 id., 671; 5 id., 256, 403, etc.

OPINION

BATTLE, J.

Lazarus & Levy brought this action against Chandler in the Ouachita circuit court, on the chancery side thereof. They alleged in their complaint that they were the owners of lot 15 in block 3 in the city of Camden and a brick building thereon which covered the entire lot; that the defendant owned the lot adjoining their lot on the west and the frame building thereon; that the last mentioned building had a shingle roof which sloped east and west, so that the eaves thereof were several feet lower than plaintiff's eastern wall and the "comb" of the defendant's house; that, on the east side next to their wall, the defendant's roof had no gutter for catching and carrying off the rain or water falling upon his building; and that all the water falling on the eastern half of his roof was discharged and thrown against and upon the west wall of the plaintiff's building and thereby injured it (the wall), to the damage of the plaintiffs in the sum of $ 2000, for which they asked judgment.

The defendant answered the complaint of plaintiffs, and denied that his house was so constructed as to throw water upon or against the wall of plaintiffs, or that he injured them in the manner alleged in their complaint. He alleged that the damaged condition of the plaintiffs' wall was owing to a defective roof on their own building; and, by way of counter-claim, alleged that a water-spout attached to plaintiffs' wall conveyed a part of the water falling on plaintiffs' roof under his house and thereby endangered the foundation of his building and flooded his cellar to his damage of $ 100.

The plaintiffs replied and denied defendant's counter-claim, and asked that the action be transferred to the law side of the court; and it was so transferred.

Upon the trial and after the jury was empaneled, the plaintiffs, by leave of the court and the consent of the defendant, demurred to the counter-claim. The demurrer was sustained by the court, and the defendant excepted.

There was no controversy about the defective condition of plaintiffs' wall; that was conceded. Evidence was adduced tending to prove that the wall was damaged by water discharged against it by the defendant's roof; and that this water was thrown upon it through the failure of the defendant to place good and sufficient gutters under the eaves of his roof. On the part of the defendant, evidence was adduced tending to prove that the water from his roof was not discharged upon plaintiffs' wall, and that its damaged condition was owing entirely to the defective roof or construction of their building. No witness testified that the damage was produced by both causes.

The defendant asked the court to instruct the jury as follows: "If the jury believe from the evidence that the inside walls of the house of plaintiffs were injured and from leaks in their own roof, then they will find for the defendant." And the court amended it by inserting after the words "their own roof" the words "and not from the defendant's roof," and gave it as amended. Another instruction was asked, and was amended in the same manner; but as this amendment presents the same question as the former, it is not necessary to set it out.

The result of the trial was a verdict and judgment in favor of plaintiffs against the defendant for $ 150.

The defendant moved for a new trial, first, because the circuit court transferred the action to the law docket; second, because the plaintiffs were permitted to demur to the counter-claim after the commencement of the trial, and because the demurrer was sustained; third, because the court erred in amending instructions; fourth, because the verdict was contrary to the law and evidence; fifth, because of newly discovered evidence.

The newly discovered evidence was the testimony of one Jake Simmons. Defendant said he could prove by Simmons that he (Simmons) was "a roofer and tinner;" and that the gutter of the roof of plaintiffs' building "was always too small for the purpose of conveying off the roof water in times of a heavy rain;" that it has "been out of repair and leaked and leaks now and will continue to overflow until enlarged; and that all the damage to the wall of plaintiffs is from leaks in their own roof." The defendant did not show that he had used any diligence to find this evidence, or when it was discovered.

The motion was denied, and the defendant appealed.

1. The action was properly transferred to the law docket. The issues in it were law issues and should have been tried as such issues are tried in proceedings at law. Organ v. Memphis & Little Rock R. Co., 51 Ark. 235, 11 S.W. 96.

2. Appellees demurred to the defendant's counter-claim by his consent. He therefore cannot complain of the time in which the demurrer was interposed.

The demurrer was properly sustained. The statute says that a counter-claim set up in an answer of a defendant "must be a cause of action in favor of the defendants, or some of them, against the plaintiffs or some of them, arising out of the contract or transactions set forth in the complaint, as the foundation of the plaintiffs' claim or connected with the subject of the action" (Mansf. Dig sec. 5034). The cause of action set up as a counter-claim in this case did not...