Choctaw, Oklahoma & Gulf Railroad Company v. McConnell

• Decision Date: 28 January 1905
• Citation: 84 S.W. 1043,74 Ark. 54
• Parties: CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. MCCONNELL
• Court: Arkansas Supreme Court

84 S.W. 1043

74 Ark. 54

CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. MCCONNELL

Supreme Court of Arkansas

January 28, 1905

Appeal from Sebastian Circuit Court, Greenwood District, STYLES T ROWE, Judge.

Reversed.

Case reversed and remanded.

E. B Peirce and Thomas S. Buzbee, for appellant.

The court erred in overruling the appellant's motion to make Davis Brothers parties defendant. Sand. & H. Dig §§ 5630, 5635; 37 Ark. 517; 49 Ark. 103. The court erred in admitting in evidence certain letters purporting to have been written by the defendant, without proper foundation first laid for their introduction. The court erred in compelling the attorney for defendant to produce a certain paper purporting to be an order testified to by one of the plaintiffs. The only proper procedure for compelling the production of a paper by the adverse party is by compliance with Sandels & Hill's Digest, § 2897. The order was equivalent to compelling the attorney for defendant to divulge a privileged communication, and was error. Sand. & H Dig. § 2916; 33 Ark. 774; 1 Gr. Ev. § 241; Grant's Dig. § 2482. Appellees were not the proper parties to maintain this action. Sand. & H. Dig. § 5624; 47 Ark. 542; 23 Ark. 31.

Appellee, pro se.

There was no error in the overruling of the motion to make Davis Brothers parties defendant. Sand. & H. Dig. §§ 5630, 5635, 5636. Nor was there any error in the admission of the letters. 1 Am. & Eng. Enc. Law (2d Ed.), 989; 42 Ark. 97; 18 Ark. 521; 33 Ark. 316. There was no error in compelling the attorney of appellant to produce the order in controversy. The witness, being in court and having the paper with him, formal compliance with the statute (Sand. & H. Dig. § 2897) was unnecessary. The said attorney was not entitled to claim the benefit of the statute giving attorneys the right to refuse to answer questions touching privileged communications to them. Sand. & H. Dig. § 2916; Gr. Ev. § 241. Plaintiffs were entitled to sue. Cf. Sand. & H. Dig. §§ 5717, 5625, 5626; 43 Ark. 33. Defects in parties are waived by going to trial without objection. 30 Ark. 399; 54 Ark. 525; 23 Ark. 31.

OPINION

HILL, C. J.

McConnell & Company sued the appellant, hereafter called the Railroad Company, in a justice's court in Hartford Township, Sebastian County, for the sum of $ 300, and alleged, in brief, this state of facts: "That the firm of McClain & Medlin had a contract to furnish the Railroad Company coal, and that they (McConnell & Company) were furnishing supplies to McClain & Medlin to enable them to fulfill their contract, and that on the 11th of December, 1900, McClain & Medlin and the constituent members, L. J. McClain and P. J. Medlin, gave an order to the Railroad Company to pay McConnell & Company the amount then due and thereafter to become due from this contract, which order was accepted, and the Railroad Company under it paid all sums due except $ 300 which it withheld, and prayed judgment for that sum. Judgment for McConnell & Company was taken by default in the justice's court, and the Railroad Company appealed to the circuit court.

Prior to this suit, Davis Brothers had on December 12, 1900, in justice's court at Hartford, sued John A. McClain for $ 269.85, obtained an attachment, and garnished the Railroad Company. The substance of the Davis Brothers' contention in that suit was that the contract in question was the contract of John A. McClain; that the business was fraudulently carried on in the name of L. J. McClain, his wife, and P. J. Medlin, when in truth the money was due John A. McClain, and not said firm or parties; and that the order in question was made after the garnishment, and, in order to defeat it, was antedated.

This case was likewise carried to the circuit court on appeal. When this suit reached the circuit court, the Railroad Company made a motion to consolidate it with Davis Brothers' suit, setting forth these facts, and that the $ 300 had been withheld on account of the garnishment in that suit, and asked leave to pay it into court and be discharged. This motion was overruled, and properly so, because the suits were not between the same parties. Kirby's Dig. § 6083; Meehan v. Watson, 65 Ark. 216, 47 S.W. 109.

After the overruling of this motion, the Railroad Company then moved for Davis Brothers to be brought in as parties to this suit, setting forth substantially the same facts. This was overruled, and the case tried, and judgment withheld until the Davis Brothers' case was tried. In that case the court, after hearing all the evidence, directed a verdict to be rendered for the defendants, which, of course, discharged the Railroad Company as garnishee, and thereafter rendered judgment in this case in favor of McConnell & Company for the $ 300 in controversy. Davis Brothers appealed their case, and the Railroad Company appealed this...