Heard v. McCabe
| Decision Date | 02 July 1917 |
| Docket Number | 75 |
| Citation | 196 S.W. 917,130 Ark. 185 |
| Parties | HEARD v. MCCABE |
| Court | Arkansas Supreme Court |
Appeal from Baxter Circuit Court; J. B. Baker, Judge; affirmed.
Judgment affirmed.
Rhoton & Helm, Z. M. Horton and Hogue & Heard, for appellant.
1. The contract was in the form of a written letter signed by appellee as set up in the first count. The second count was upon a quantum meruit, which was erroneously dismissed. Appellant found a purchaser and appellee sold the timber to the purchaser furnished by appellant.
2. It was error to allow the answer to interrogatory No. 11 of C M. Pate to be so changed as to make it show that witness sad the reverse of what he did say.
3. It was error to exclude the letters from appellant to Chess-Wymond Company, and those from that company to appellant. They were all competent.
4. Appellant was certainly entitled to recover on a quantum meruit. 66 Mo.App. 424; 59 Ga. 588.
5. The suit was not barred. 96 Ark. 681. The suit was within the three years. 93 Ark. 215; 102 Id. 65.
The bill of exceptions which appears in the record in this case has heretofore been stricken out by an order of the court on the ground that it was not properly certified by the trial judge. We have before us, therefore, a case tried by a jury without the proceedings at the trial being preserved in a bill of exceptions, and we can only look to the state of the record itself to determine whether or not error was committed by the trial court.
It is urged that, notwithstanding the absence from the record of a bill of exceptions, there is error apparent on the face of the record in the ruling of the court striking out the second paragraph of appellant's complaint.
Appellant sued appellee in the circuit court of Baxter County, the subject-matter of the cause of action in each paragraph of the complaint being commissions alleged to have been earned by appellant on a sale of appellee's timber. The first paragraph of the complaint sets up a written contract between appellant and appellee whereby the latter employed the former to sell his land or timber for a commission of fifty cents per acre; and the second paragraph sets up an oral contract between said parties on the same date as the written contract set forth in the preceding paragraph for a sale of the same land and timber, and that it was a part of the agreement that appellee was to pay appellant for his services "whatever the services of the plaintiff to the defendant were really worth." It is alleged in each paragraph that the two contracts referred to were entered into between the parties "on or about the first day of March, 1909," and that appellant effected a sale of the timber on April 15 1910. The present action was instituted February 24, 1913, although process was not served on appellee until August 23, 1913. Appellee filed a motion to dismiss the complaint on the ground that the litigation instituted by appellant was vexatious and without merit. It is alleged in the motion that appellant had previously brought an action against appellee in the circuit court of Searcy County on the same cause of action, and dismissed the same after all the testimony had been adduced before the jury, and subsequently instituted another action against appellee in the circuit court of Pulaski County on the same cause of action and dismissed that action, too, after the trial of the cause had progressed beyond the introduction of evidence and approached a point of final submission to the jury.
It was further alleged in the motion that each of said prior actions had been instituted in counties other than that of appellee's residence, and that appellant had practiced deceit and had resorted to fraudulent artifices to induce appellee to come into those counties for the purpose of serving process on him, and that the present action, as well as the two prior ones, were instituted by appellant for vexatious purposes and solely to harass and annoy appellee into submitting to a compromise. It is alleged that there was no...
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Hand v. Northwestern Nat. Ins. Co.
...Improvement District,138 Ark. 162, 210 S.W. 150. We have also approved its use to obtain dismissal for abuse of process. Heard v. McCabe, 130 Ark. 185, 196 S.W. 917. When based upon the assertion that the complaint fails to state a cause of action, it is tantamount to a general demurrer. Me......
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Helton v. Howe
... ... Billingsley v. Adams, 102 Ark. 511, 145 ... S.W. 190; Armstrong v. Lawson, 128 Ark. 39, ... 193 S.W. 258; Heard v. McCabe, 130 Ark ... 185, 196 S.W ... ...
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Cowan v. Patrick
...power to dismiss an action which is shown to have been brought without merit and which constitutes an abuse of process. Heard v. McCabe, 130 Ark. 185, 196 S.W. 917. In that case we sustained the circuit court's dismissal of a complaint upon a finding that the cause was without merit and was......
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