Kaplan v. Scherer

• Decision Date: 22 March 1943
• Docket Number: 4-7023
• Citation: 169 S.W.2d 660,205 Ark. 554
• Parties: KAPLAN v. SCHERER
• Court: Arkansas Supreme Court

169 S.W.2d 660

205 Ark. 554

KAPLAN v. SCHERER

4-7023

Supreme Court of Arkansas

March 22, 1943

Appeal from Miller Chancery Court; A. P. Steel, Chancellor affirmed.

Decree affirmed.

Joseph Brooks, for appellant.

T. B Vance, for appellee.

HOLT J. CARTER, J., disqualified and not participating.

OPINION

HOLT J.

Appellee, Ruth Scherer, and her sister, Fannie Scherer Sanders, who were the owners of the east 60 feet of lot 11, block 30, town of Texarkana, Arkansas, on March 14, 1931, sold and conveyed, by warranty deed, to the city of Texarkana, Arkansas, approximately nine feet off the west frontage of lot 11, which left the title and ownership to the remaining east 51.1 feet of lot 11, block 30, town of Texarkana, in appellee and her sister, Fannie Sanders. Subsequently, appellee acquired the interest of her sister in this property. After the sale of part of lot 11 to the city of Texarkana the property was carried on the tax books and assessed under the first description, supra; that is, "east 60 feet, lot 11, block 30, town of Texarkana, Arkansas," and under this description was sold to the state on November 2, 1936, for the 1935 taxes. Title was confirmed in the state September 25, 1939, under act 119 of 1935, and thereafter, on June 11, 1941, appellant purchased the property from the state, securing Land Commissioner's deed, under the description "east 60 feet of lot 11, block 30 of the original city of Texarkana, Arkansas," for a recited consideration of $ 365.68.

Appellant brought suit in ejectment, alleging ownership and right to possession of the property in question. Appellee answered, filed cross-complaint and moved to transfer to equity. The motion to transfer to equity was granted; whereupon, appellant filed motion to remand to the circuit court, and thereafter filed answer to appellee's cross-complaint.

Appellee's answer and cross-complaint, and amendment thereto, denied the allegations of appellant's complaint, alleged that the tax assessment, forfeiture and sale of appellee's property were void for lack of power in the state to sell on several grounds, among them being "that the west portion of said lot 11, block 30 of said town of Texarkana, Arkansas, had theretofore been condemned and owned by the city of Texarkana, Arkansas, for street purposes; that said portion of lot 11, block 30 was not subject to taxation by state of Arkansas for 1935 taxes; that the description of plaintiff's property as east 60 feet of said lot 11, the levy of an assessment and sale thereof were void for indefinite description, and for the further reason that said levy and sale of said defendant's east 51 feet for various assessments against the east 60 feet of said lot 11, block 30, nine feet of which was not subject to taxation and sale, resulted in a levy and sale of plaintiff's property for an illegal sum of money, and was beyond the power of the state and its officers, and, therefore, void for want of power."

Upon a trial of the cause, the court determined all issues in favor of appellee, and there was a decree accordingly. This appeal followed.

For reversal appellant earnestly contends that the court was without jurisdiction and that this is the primary question presented here. We think, however, that this contention is untenable for two reasons. In the first place the record discloses that after appellant filed his motion to remand to the law court he pursued this motion no further. The court was not asked to rule on this motion and made no order on this motion. Subsequently appellant filed answer to appellee's cross-complaint. Appellant, therefore, waived his motion to remand and in effect, consented to trial in equity. See Schuman v. Sanders, 200 Ark. 540, 140 S.W.2d 121; Street v. Shull, 187 Ark. 180, 58 S.W.2d 932; Hill v. McClintock, 175 Ark. 1059, 1 S.W.2d 564; Pratt v. Frazer, 95 Ark. 405, 129 S.W. 1088. In the Shull case this court said: "The appellant here contends that the court erred in refusing to sustain his motion to strike parts of appellee's cross-complaint and in not sustaining his demurrer to the cross-complaint. Sufficient answer to this contention is that the court did not refuse to strike, nor did it refuse to sustain the demurrer. It failed to make any ruling on the motion or on the demurrer, and, by failing to insist on a ruling and filing his answer, the appellant waived the motion and the demurrer. Pratt v. Frazer, 95 Ark. 405, 129 S.W. 1088; Hill v. McClintock, 175 Ark. 1059, 1 S.W.2d 564."

In the McClintock case it is said: "McClintock did not ask or obtain a ruling upon his motion to dismiss the appeal, but, on the other hand, went to trial in the circuit court on the merits of the case. Under our system of pleading he will be deemed to have waived a ruling on his motion to dismiss the appeal and to have consented to the jurisdiction of the circuit court to try the case," and in Pratt v. Frazer this court held (quoting headnote 3): "The right to have a suit in equity transferred to the circuit court is waived by voluntarily submitting to trial of all the issues by the chancery court."

Aside, however, from the fact that appellant waived his alleged right to remand by not pressing his motion to remand to a decision, we think the motion was not well taken for the reason that it is clear that the chancery court did have jurisdiction. The very purpose of appellee's answer and cross-complaint was to have the confirmation decree, as it affected the property involved here, declared invalid and set aside, and this relief could only be given by a court of equity.

Appellee's attack on the validity of appellant's tax deed from the state of...