Coleman v. Bercher

• Decision Date: 28 March 1910
• Citation: 126 S.W. 1070
• Parties: COLEMAN v. BERCHER.
• Court: Arkansas Supreme Court

126 S.W. 1070

COLEMAN v. BERCHER.

Supreme Court of Arkansas.

March 28, 1910.

Appeal from Circuit Court, Sebastian County, Ft. Smith District; Daniel Hon, Judge.

Action by Fannie Coleman against Leo Bercher. The court made an order denying the motion of plaintiff's attorney for permission to sign the complaint as plaintiff's agent and attorney, and to amend the affidavit, and dismissed the complaint. Plaintiff appeals. Reversed and remanded.

Edwin Hiner, for appellant. Leo Bercher, pro se.

HART, J.

Fannie Coleman brought an action of unlawful detainer in the Sebastian circuit court, Ft. Smith district, against Leo Bercher. The statutory notice was given, and the complaint, affidavit, and bond contemplated by section 3634 of Kirby's Digest were filed by plaintiff. The complaint was not signed, but the affidavit referred to was attached to it, and was signed and sworn to by Edwin Hiner. The defendant did not file an answer, but made a motion to strike the alleged complaint from the files of the court, because it was not signed by the plaintiff or by any one else in her behalf, and because the verification of the alleged complaint was not signed by the plaintiff or any one purporting to have authority to act for her. Then Edwin Hiner, for the plaintiff, asked that he be allowed to sign the complaint as her agent and attorney, and also asked leave to amend the affidavit attached thereto by showing that said Edwin Hiner, who made the affidavit, was at the time of filing and signing it the agent and attorney of the plaintiff. The court denied his request and dismissed the complaint. The plaintiff has duly prosecuted an appeal to this court.

It is conceded that the action of the court was based upon sections 3634 and 6120 of Kirby's Digest, and the decision of the court in the case of Carrington & Pryor v. Hamilton, 3 Ark. 416, in which it was held that an unsigned complaint could not be amended and should be stricken from the files. It is urged that the act in force at the date of that decision is similar to the general practice act in regard to signing complaints (Kirby's Dig. § 6120), which provides that "every pleading must be subscribed by the party or his attorney," and to section 3634, applicable to actions of unlawful detainer, and that the decision should govern. This decision was rendered many years before the adoption of our Civil Code. In the case of Burke, Ex'r, v. Snell, 42 Ark. 57, the court said: "The primary object of the Code is the...