Flanagan v. Ray, (No. 79.)

CourtSupreme Court of Arkansas
Writing for the CourtWood
Citation232 S.W. 600
PartiesFLANAGAN v. RAY.
Docket Number(No. 79.)
Decision Date04 July 1921

Page 600

232 S.W. 600
FLANAGAN
v.
RAY.
(No. 79.)
Supreme Court of Arkansas.
July 4, 1921.

Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor.

Action by R. T. Flanagan against Andrew Ray. From decree dismissing the complaint, plaintiff appeals. Affirmed.

J. E. London, of Van Buren, for appellant.

Appellee, pro se.

WOOD, J.


This action was instituted by the appellant against the appellee in the Sebastian circuit court. The appellant alleged that he was the owner and entitled to the possession of the west part of section 30, township 8 north, range 30 west, in Sebastian county, Ark., containing 37 2/3 acres. Appellant deraigned title through Abram Smith and his wife, who acquired title through Albert Schular. The deed which was exhibited with his complaint described the land as follows: West part of the N. W. Fr. ¼ of Sec. 30, T. 8 N., R. 30 W., containing 37.94 acres more or less. Appellant alleged that the appellee was in the wrongful possession of the land and had been for more than four years, to appellant's damage in the sum of $500. The prayer was for possession and damages in that sum.

The appellee moved to transfer the cause to the chancery court. He alleged in his motion that the present suit was the third for the determination of the title and the right to possession of the land described in appellant's complaint; that the two former suits were between the appellant and R. W. McFarlane; that the appellee deraigned title through McFarlane, who acquired title through a decree and sale of the land by the chancery court.

The appellant replied to the motion to transfer, and alleged that this was an action in ejectment and that the appellant must recover upon the strength of his own title and that the motion to transfer does not set out any equitable defense; that the allegation that the suit had been before determined in the chancery court, if true, would not entitle the appellee to attack a decree or judgment of the chancery court in this action; that the issue here raised by the plaintiff's complaint was purely one at law, which, on the issues of fact, called for the intervention of a jury. There is no record entry showing that the cause was formally transferred to the chancery court; but there is an entry showing that a "reply and cross-complaint" was filed in the chancery court and the cause proceeded to a decree in that court, from which comes this appeal.

We must presume, therefore, that the cause was duly transferred to the chancery court, and in the absence of any showing in this record that the appellant excepted to the ruling of the court in transferring the cause, we must assume that he waived any objections that he might have to such transfer. The so-called "reply and cross-complaint," which in reality is but an amended complaint, alleged in substance that the appellant executed a note to John H. Holland for the sum of $500; that a mortgage on the land was prepared and given appellant to execute, but it is not true that the mortgage executed by appellant was on the land involved in this

Page 601

suit, as the record will show; that of the proceedings had in the chancery court appellant's information is of the most meager kind, but he is informed that a judgment was entered against him in favor of R. W. McFarlane; that an execution was issued and levied on the lands described in the decree which was the E. part of the N. W. Fr. ¼ of Sec. 30, T. 8 N., R. 30 W., in Sebastian county; that these lands were sold; that a writ of possession was issued by the clerk without notice to the appellant and without an order of the court, and that under this writ of possession McFarlane wrongfully took possession, not of the land above described in the decree, but of the W. part of the N. W. Fr. ¼ of Sec. 30, T. 8 N., R. 30 W., in Sebastian county, and also of the S. E. ¼ of N. W. ¼ of Sec. 29, T. 8 N., R. 30 W., in Sebastian county; that McFarlane took possession of the lands and sold them to one Pittman, and...

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2 cases
  • Flanagan v. Ray, 79
    • United States
    • Supreme Court of Arkansas
    • 4 Julio 1921
    ...232 S.W. 600 149 Ark. 411 FLANAGAN v. RAY No. 79Supreme Court of ArkansasJuly 4, Appeal from Sebastian Chancery Court, Greenwood District; J. V. Bourland, Chancellor; affirmed. Decree affirmed. J. E. London, for appellant. 1. It was error to transfer the cause to chancery. Plaintiff (appell......
  • Renner v. Progressive Life Ins. Co., 4-4735.
    • United States
    • Supreme Court of Arkansas
    • 11 Octubre 1937
    .... Page 1245. 109 S.W.2d 1245. RENNER. v. PROGRESSIVE LIFE INS. Co. No. 4-4735. Supreme Court of Arkansas. October 11, 1937. Rehearing Denied ...St. Louis, M. & S. E. Ry. Co., 87 Ark. 65, 112 S.W. 141; Flanagan v. Ray, 149 Ark. 411, 232 S.W. 600; Anthony v. St. Louis, I. M. & S. Ry. ......

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