Shelton v. Jack, 5-3616

• Decision Date: 01 November 1965
• Docket Number: No. 5-3616,5-3616
• Citation: Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (Ark. 1965)
• Parties: Doyle SHELTON, Myrtle Shelton and Gracie Hagger, Appellants, v. William Franklin JACK a/k/a Frank Jack and Rena Jack, his wife, W. O. Hewitt and Ruth Hewitt, his wife H. W. Rouse and Melba K. Rouse, his wife, David C. Organ and Allie M. Organ, his wife, and Bryan Bolling and Mary K. Bolling, his wife, Appellees.
• Court: Arkansas Supreme Court

Page 9

395 S.W.2d 9

239 Ark. 875

Doyle SHELTON, Myrtle Shelton and Gracie Hagger, Appellants, v. William Franklin JACK a/k/a Frank Jack and Rena Jack, his wife, W. O. Hewitt and Ruth Hewitt, his wife H. W. Rouse and Melba K. Rouse, his wife, David C. Organ and Allie M. Organ his wife, and Bryan Bolling and Mary K. Bolling, his wife, Appellees.

No. 5-3616.

Supreme Court of Arkansas.

Nov. 1, 1965.

Harold C. Rains, Jr., Van Buren, for appellants.

No brief filed for appellees.

HARRIS, Chief Justice.

On May 1, 1961, appellants instituted a suit in the Crawford County Chancery Court against appellees, alleging that appellants and appellees were the owners of adjoining lands, with a roadway running between said lands; that the roadway was a public road, and provided the appellants with their only access to the rear of their property. The complaint alleged that appellees had illegally closed this road, and had caused a fence to be constructed across it and onto the property of appellants, thereby closing the road, and also a portion of the property claimed by appellants. The prayer sought damages in the amount of $1,000.00, and asked that appellees be required to move the fence, and be permanently restrained from interfering with the use of the road by the appellants, their guests, and successors in title.

On January 3, 1962, this suit was dismissed without prejudice. Thereafter, on September 16, 1963, appellants filed another complaint in the Crawford County Chancery Court, alleging the same facts heretofore related, and, in addition, asserting adverse use of the roadway for more than seven years under a claim of right by appellants and their predecessors in title. It was prayed that the court find the road to be a public road, or, in the alternative, a private road, and the court was asked to require appellees to remove the fences, and to enjoin appellees from interfering with the complete and unrestricted use of the roadway, and the property, alleged to belong to appellants. Damages were sought for alleged destruction of flowers, plants, and a shade tree; damages for trespass; also damages for the reduced value of appellants' property, and for injuries occasioned by water drainage upon the property in the total amount of $15,000.

After the filing of all pleadings in the case, and the announcement that the parties were ready for trial, appellees, through counsel, moved that the complaint be dismissed because of the fact that the present action was filed about twenty-one months after plaintiffs had taken a nonsuit in the earlier case mentioned at the outset of this opinion. This motion was based on Ark.Stat.Ann. § 37-222 (Repl.1962), which provides, inter alia, that, where the plaintiff takes a nonsuit, '* * * such plaintiff may commence a new action within one year after such nonsuit suffered or judgment arrested or reversed. * * *' The court granted the motion, because the instant suit had not been filed within one year from the date of the taking of the nonsuit, and entered its decree, dismissing the complaint. From such decree, appellants bring this appeal.

The sole question before this court is whether Section 37-222 applies under the facts heretofore enumerated.

The complaint asserts that the fences were constructed in the early part of 1961, and appellants contend that accordingly, they have until the early part of the year 1968 in which to file an appropriate cause of action. This argument is sound, for this question has been...