Little Rock & F. S. Ry. Co. v. Wells

• Decision Date: 30 November 1895
• Citation: 33 S.W. 208
• Parties: LITTLE ROCK & F. S. RY. CO. v. WELLS.
• Court: Arkansas Supreme Court

33 S.W. 208

LITTLE ROCK & F. S. RY. CO. v. WELLS.

Supreme Court of Arkansas.

November 30, 1895.

Appeal from circuit court, Crawford county; Jephtha H. Evans, Judge.

Suit by the Little Rock & Ft. Smith Railway Company against Thomas H. Wells to enjoin the enforcement of a judgment. The complaint was dismissed, and defendant appeals. Reversed.

In this case we have another application to a court of equity to grant relief against a judgment at law. The action at law was brought by Thomas H. Wells against the appellant railway company for the purpose of collecting a penalty for overcharges alleged to have been made by the railway company for the carriage of said Wells as a passenger on its trains, between the stations of Van Buren and Dyer, and Alma and Dyer. He alleged that on four different trips an overcharge of about 5 cents was made on each trip. The verdict was in favor of plaintiff, and the penalties assessed for the four overcharges amounted to $700, of which amount $300 was remitted by the plaintiff. A motion for new trial was filed and everruled, and 60 days allowed to file bill of exceptions. The death of the presiding judge, which happened shortly afterwards, and before the bill of exceptions was signed, prevented the appeal from being taken. The appellant then brought his suit in equity. The cause was submitted to the chancellor, upon the pleadings, exhibits, and agreed statement of facts. The evidence at the trial at law had been taken down by a stenographer; and a bill of exceptions prepared by counsel, containing that evidence, was by consent read as evidence in the equity suit; it being agreed by counsel for the respective parties that it was "correct in every particular." The complaint was dismissed for want of equity, and an appeal was taken.

Dodge & Johnson, for appellant.

RIDDICK, J. (after stating the facts).

There are two questions in this case: First. Has a court of equity the power to grant the relief prayed for? And, second, if the power be conceded, is this such a case as calls for its exercise?

The first question has been considered and answered in the affirmative by our ruling in the case of Railway Co. v. Fitzhugh, 33 S. W. 960, and we need only consider the second question.

It is said that the trial court committed error in impaneling, and also in charging, the jury. But errors alone are not sufficient to warrant the interposition of a court of equity. "It must clearly appear that it would be contrary to equity and good conscience to allow the judgment to be enforced, else equity declines to impose terms upon the prevailing party." Whitehill v. Butler, 51 Ark. 343, 11 S. W. 477; Railway Co. v. Fitzhugh, supra. But a consideration of the evidence introduced in the action at law leads us to the conclusion that the verdict and judgment against the appellant were without evidence to support them. To warrant a judgment for the penalty imposed against appellant in the action at law, it was essential that there should be some evidence tending to show that the amount charged the appellee was greater than three cents per mile for the distance he was carried as a passenger. Sand. & H. Dig. §§ 6211, 6217.

Now, an examination of the evidence shows that there was no competent evidence introduced to show the distance between the stations of Van Buren and Dyer, and Alma and Dyer. The only witnesses that testified were the appellee and his attorney. Neither of them told or pretended to know what the distances between these stations were. They gave the number of the nearest milepost to each station, and stated that the milepost showed the distances between the stations to be a certain number of miles, but there is nothing to show that the appellant had any connection with these mileposts. We...