Coats v. Milner
| Decision Date | 13 May 1918 |
| Docket Number | (No. 365.) |
| Parties | COATS et al. v. MILNER. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Lawrence County; Dene H. Coleman, Judge.
Suit by J. M. Milner against S. A. Coats, who filed a cross-complaint against plaintiff, and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.
W. P. Smith, of Walnut Ridge, for appellants. Ponder, Gibson & Ponder, of Walnut Ridge, for appellee.
Milner sued Coats for $400 on a promissory note. Coats filed an answer and cross-complaint, in which the execution of the note was admitted, but which alleged the fact to be that Milner and one Creager were liable as partners to Coats by way of damages in the sum of $800 for the breach of a contract to sell and deliver a sawmill. Milner demurred to the cross-complaint on the grounds that the damages claimed could not be recovered in this action and for the further reason that the complaint did not sufficiently allege what the recoverable damages were. The demurrer was sustained, and this appeal questions the correctness of that action.
It does appear that the allegations in regard to the recoverable damages in the cross-complaint are indefinite and uncertain, but that defect in the pleading should have been reached by a motion to make more definite and certain rather than by demurrer. That, however, does not appear to be the question which was regarded by the court below as of controlling importance. The controlling question is whether such damages are the subject of a counterclaim against Milner's suit on the note. Counsel for Milner call attention to the fact that, although Creager was made a defendant in the cross-complaint, no service of process was had upon him, and that Creager is not therefore before the court. This failure to serve Creager with process is not fatal to the prosecution of the counterclaim if the right to its prosecution otherwise exists. The cross-complaint alleged that Milner and Creager were partners, and as such their liability is both joint and several. Early opinions of this court decided that it was competent for a person having a cause of action against a firm on a partnership contract to sue one or more of the partners at his election. Hicks v. Maness, 19 Ark. 701; Hamilton v. Buxton, 6 Ark. 24; Burgen v. Dwinal, 11 Ark. 314.
And it is equally as well settled that the person damaged may sue one or more of joint tort-feasors, although, of course, only one satisfaction can be had either of the debt or the damages.
The decision of the question presented turns upon the construction of Act No. 267 of the Acts of 1917, p. 1441. This act is entitled "An act to amend sections 6099 and 6101 of Kirby's Digest." Section 6099 of Kirby's Digest reads as follows:
"The counterclaim mentioned in this chapter 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 plaintiff's claim or connected with the subject of the action."
This section is amended to read as follows:
"The counterclaim mentioned in this chapter may be any cause of action in favor of the...
To continue reading
Request your trial
-
Fulcher v. Dierks Lumber & Coal Company
...counterclaim set up did not grow out of the transaction on which the original suit is based, is fully answered by C. & M. Digest, § 1197. 134 Ark. 311; 135 Ark. 531; 147 Ark. 521. having jurisdiction for one purpose, will retain it for all purposes and grant all relief, legal or equitable, ......
-
Doggrell v. Great Southern Box Co., Inc., of Miss., 11701.
...Tenn. 207, 159 S.W. 1094; House v. Thompson, 40 Tenn. 512; Curlee Clothing Co. v. Hamm, 160 Ark. 483, 254 S.W. 818; and Coats v. Milner, 134 Ark. 311, 203 S.W. 701. The contention of appellant that the obligation with which we are here concerned is governed by the Uniform Partnership Laws e......
-
Purser v. Corpus Christi State Nat. Bank, 73-308
...460. However, the statute applies only to a cause of action which the defendant could maintain as an independent suit. Coats v. Milner, 134 Ark. 311, 203 S.W. 701. The cause of action on which this counterclaim and setoff was founded arose from allegedly tortious conduct of the appellee in ......
-
Evans v. Thompson
...of Mississippi, 6 Cir., 206 F.2d 671, 679; rehearing granted and case reversed on other grounds in 6 Cir., 208 F. 2d 310; Coats v. Milner, 134 Ark. 311, 203 S.W. 701. And, the Court agrees with the statement of Judge Dobie in Weaver v. Marcus, supra, 165 F.2d at page 865, that "Though the l......