Munday v. Collier

• Decision Date: 26 October 1889
• Citation: 12 S.W. 240
• Parties: MUNDAY <I>v.</I> COLLIER.
• Court: Arkansas Supreme Court

12 S.W. 240

MUNDAYv.

COLLIER.

Supreme Court of Arkansas.

October 26, 1889.

Appeal from circuit court, Randolph county; J. W. BUTLER, Judge.

Action by M. F. Collier, as administrator of Mary Munday, against Daniel Munday, on a promissory note. Defendant answered that at the time the note was executed he and Mary Munday, the payee, were husband and wife, and set up partial payments upon the note. The case was tried by a jury, and there was a verdict for plaintiff, and judgment accordingly. Defendant appeals, urging that, if the note was not absolutely void, the only remedy upon it is in equity.

Sam. W. Williams, for appellant. U. M. & G. B. Rose, for appellee.

PER CURIAM.

The question of the application of the sums claimed to have been paid by defendant, Munday, to his wife, was fairly submitted to the jury, and they found that the amounts, if paid, were not made as payments on the note, and their verdict is conclusive. Whether the note constituted a liability or not, it was unquestionably an equitable claim against the husband. The error, if any, in bringing the action at law was waived by the defendant's failure to move a transfer to the proper docket. Organ v. Railway Co., 51 Ark. ___, 11 S. W. Rep. 96. Affirmed.