Collins v. Paepcke-Leicht Lumber Company

Decision Date11 February 1907
Citation100 S.W. 86,82 Ark. 1
PartiesCOLLINS v. PAEPCKE-LEICHT LUMBER COMPANY
CourtArkansas Supreme Court

Appeal from Chicot Chancery Court; Marcus L. Hawkins, Chancellor reversed.

Judgment reversed and cause remanded.

H. E Cook, W. G. Streett and Baldy Vinson, for appellants.

1. The appellants, being owners of part of the land, are owners of part of the timber, or its value, and it was the duty of the court to afford relief for the timber cut and removed. 95 Ala. 527; 51 Cal. 505; 35 Vt. 449; 33 W.Va. 60; 20 Fla. 58; 29 Ill. 294.

2. It was error to adjudge one half the costs against appellants when the mandate of this court awarded all the costs against appellee.

F. M. Rogers, for appellee.

The opinion of this court in 77 Ark. 101 is a complete answer to and refutation of the claims of appellants in this cause.

OPINION

BATTLE, J.

On the 7th day of March, 1901, James E. Collins and others instituted an action against Paepcke-Leicht Lumber Company in the Chicot Chancery Court to recover certain lands and for $ 10,000 as damages for timber cut. On the 4th day of June, 1901, upon final hearing, the court dismissed the complaint for want of equity, and plaintiffs appealed to this court. On the 28th of January, 1905, this court reversed the decree of the chancery court as to half interest in the lands and affirmed as to the other, and the cause was "remanded to said chancery court with directions to enter a decree for appellants for an undivided half of the lands in controversy and for further proceedings to be therein had in accordance with the opinion herein delivered." On the 15th of April, 1905, plaintiffs filed a motion in the chancery court, in which they stated that the defendant had before and since the institution of this action wrongfully cut and removed timber from the lands in controversy, of great value, and asked that a master be appointed to ascertain the amount and value of such timber, and for other relief; but it did not state that any of the timber was cut after the 4th day of June, 1901, when the final decree was rendered by the chancery court. Upon motion the chancery court rendered a decree in accordance with the mandate of this court, and ordered that plaintiffs be taxed with one half the costs in the case and the defendants with the other half. The plaintiffs then asked this court to issue the writ of mandamus, requiring the chancellor to take cognizance of plaintiff's motion, and to appoint a master to take an account of the timber cut. This court denied the writ. Collins v. Hawkins, 77 Ark. 101, 91 S.W. 26. Plaintiffs then appealed from the refusal of the chancery court to appoint a master as requested by their motion, and from the judgment for costs.

In disposing of the application for a writ of mandamus this court said: "An inspection of the record in the case discloses the fact that, while the original complaint alleges that the defendant had cut a large quantity of timber, and the answer denies that allegation, no proof on that issue was taken by either party. Neither the lower court nor this court made any express finding as to timber cut. Whether the final judgment of this court bars the right of the plaintiffs to assert...

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11 cases
  • Paepcke-Leicht Lumber Company v. Collins
    • United States
    • Arkansas Supreme Court
    • 2 Marzo 1908
    ...of this court was to ascertain the damages sustained by plaintiffs in cutting the timber on the land involved since the 4th June, 1901. 82 Ark. 1. An appeal in chancery is a trial de novo. Ark. 344. And this has been followed to the present time. See Crawford's Dig. 150; 2 Id. 70. The excep......
  • Chicago Mill & Lumber Co. v. Osceola Land Co.
    • United States
    • Arkansas Supreme Court
    • 7 Marzo 1910
    ...delivered May 13, 1907. 84 Ark. 14. The only power of the chancery court was to enter a decree as directed by this court. 74 Ark. 81-87; 82 Ark. 1; 85 Ark. 2. The court erred in sustaining the report of the master, which was unjust and unconscionable, placed an excessive valuation on the ti......
  • JeToCo Corp. v. Hailey Sales Co., 80-17
    • United States
    • Arkansas Supreme Court
    • 14 Abril 1980
    ...breach of the contract and it had not been terminated adversely to appellee. Ark.Stat.Ann. § 27-136 (Repl.1979); Collins v. Paepcke-Leicht Lumber Co., 82 Ark. 1, 100 S.W. 86; Coley v. Westbrook, 208 Ark. 914, 188 S.W.2d 141. Cf. Hemingway v. Grayling Lumber Co., 125 Ark. 400, 188 S.W. 1186.......
  • Gaither v. Campbell
    • United States
    • Arkansas Supreme Court
    • 28 Marzo 1910
    ... ... unless matters are left open for further proceedings below ... Collins v. Paepcke-Leicht Lbr. Co., 82 Ark ... 1, 100 S.W. 86. The distinction ... ...
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