Denton v. Young

• Decision Date: 10 July 1922
• Docket Number: 122
• Citation: 242 S.W. 801,154 Ark. 538
• Parties: DENTON v. YOUNG
• Court: Arkansas Supreme Court

242 S.W. 801

154 Ark. 538

DENTON v. YOUNG

No. 122

Supreme Court of Arkansas

July 10, 1922

Appeal from Fulton Circuit Court; Archie F. House, judge on exchange; affirmed.

Judgment affirmed.

C E. Elmore and Oscar E. Ellis, for appellants.

The judgment in the ejectment suit which was pleaded as a bar by appellee in his motion to dismiss the cross-complaint herein and which was held by the court to constitute a bar, could not be a defense to the cross-com-plaint. 33 Ark. 801; 2 Ark 578; 7 Ark. 502.

The former ruling of this court (145 Ark. 147), reversing the case with directions to reinstate the answer and cross-complaint, is the law of this case. Appellee should have pleaded the judgment in the ejectment suit as a defense to the cross-complaint on the former trial, and not having done so, he is estopped. 122 Ark. 491.

J. M. Burrow and John H. Caldwell, for appellees.

The judgment in the ejectment suit, from which appellants took no appeal, is a bar to the present suit, since the same issues were therein adjudicated. 65 Ark. 469; 57 Ark. 500; 55 Ark. 292; 66 Ark. 336. Since appellants cannot dispute appellees' right of possession under this judgment, they cannot maintain the present suit under sec. 4854, C. & M. Digest; 128 Ark. 277. Although the judgment in the ejectment suit was rendered after appellants filed their cross-complaint in the present action, still this does not prevent its being a bar. 76 Ark. 423; 55 Ark. 633. The judgment in the ejectment suit settled the issues in this.

OPINION

WOOD, J.

This is the second appeal in this case. See Denton v. Young, 145 Ark. 147, 223 S.W. 380. We refer to that opinion for a statement of the issues set forth in the pleadings. Concluding the opinion in that case, we said: "Appellees' action was for forcible entry and unlawful detainer of the property in controversy. Appellants, in their answer, dispute appellees' right of possession to said property, and in their cross-complaint allege that they were in the possession, and entitled to the possession thereof, as purchasers at a tax sale for delinquent taxes for the year 1918; that, although appellees had no right to the possession of said lands, they wrongfully dispossessed them through proceedings for forcible entry and unlawful detainer, and, in doing so, damaged their household effects. One wrongfully and unlawfully ousted from the possession of real estate is entitled to have any damages sustained by him assessed by the jury trying the main issue and to a judgment for the amount so assessed. Sec. 3646, Kirby's Digest. Appellees contend, however, that this statutory right in favor of appellant was swept away by their confession in the judgment rendered in the ejectment suit between the same parties. The judgment relied upon in support of this contention was not introduced in evidence in the instant case and was not, and could not have been, brought into this record by bill of exceptions. It was improperly brought into this transcript by writ of certiorari. Appellants' motion to strike it from the files is sustained. For the error in sustaining the demurrer to the answer and crossbill of appellants to appellees' last amended complaint, the judgment is reversed and the cause remanded, with directions to reinstate the answer and cross-complaint and for further proceedings not inconsistent with this opinion."

Upon remand of the cause the appellee, Jas. R. Young, filed a motion to dismiss the cross-complaint, in which he set up that Ross Denton and Mrs. Ross Denton, the cross-complainants, obtained permission of Jas. R. Young, as administrator of the Harrison estate, to enter upon and take possession of the premises described in their cross-complaint, and thereby became tenants at will of the said Young, but later refused to surrender and vacate the premises when Young demanded them to do so, and wrongfully and unlawfully held the same against said Young, who, as such administrator, on July 17, 1919, instituted a suit in ejectment against these cross-plain-tiffs. They attached to their motion a copy of the complaint in ejectment and the answer and cross-complaint of the Dentons thereto, in which they set up that they had the lawful right and legal possession of the premises. The motion then alleged that Young and Niles filed a supplementary or amended complaint asking for a writ of possession, which writ was issued and executed on the 29th of September, 1919. The motion then alleged that the question of whether Mr. and Mrs. Denton were rightfully or wrongfully in possession of the premises, together with other questions, were raised in that suit, and that, upon a final hearing of the same, the circuit court, at its February term, 1920, adjudged that the Dentons were in unlawful possession of the property and rendered against them a judgment of ouster. The motion then, by way of explanation, recites the history of the litigation in the present action of unlawful detainer as is...