Simpson & Webb Furniture Company v. Moore

• Decision Date: 28 March 1910
• Parties: SIMPSON & WEBB FURNITURE COMPANY v. MOORE
• Court: Arkansas Supreme Court

126 S.W. 1074

94 Ark. 347

SIMPSON & WEBB FURNITURE COMPANY v. MOORE

Supreme Court of Arkansas

March 28, 1910

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor reversed.

Decree reversed and cause remanded.

W. F Coleman, for appellant.

The complaint, though verified, was not evidence. The statute requires evidence in such cases. Kirby's Dig., § 6120. By defendant's answer, the basis of appellee's cause of action was put in issue, and their defense inured to the benefit of all. 71 Ark. 1. As appellant was the real party in interest, it had the right to defend for all. Kirby's Dig., § 5999. Appellee's allegation that he did not owe the debt sued on did not entitle him to the relief sought, was only a conclusion of law, and was demurrable. 35 Ark. 104; 32 Ark. 97; 43 Ark. 296; 60 Ark 606; 72 Ark. 478. The court should disregard such allegations, even though they are not denied. 64 Ark. 39.

OPINION

HART, J.

This is an action instituted in the Jefferson Chancery Court by C F. Moore and Mrs. C. F. Moore against Simpson & Webb Furniture Company, J. F. Stewart and L. E. Cheek. The complaint, in substance, alleges the following:

That the Simpson & Webb Furniture Company, a corporation organized and doing business under the laws of the State of Arkansas, brought suit before L. E. Cheek, a justice of the peace for Vaugine Township in Jefferson County, Arkansas, against C. F. Moore and Mrs. C. F. Moore for an alleged indebtedness of $ 98. That prior to the day of trial an agent of said corporation represented to them that the suit would be continued indefinitely, and that they need not attend on the day of trial. That they relied upon these statements and failed to attend the trial on the return day of the writ, and that, in disregard of its agreement, said corporation obtained judgment against them by default. That they had no knowledge of that fact until the time for taking an appeal had expired. That said corporation procured an execution to be issued and placed in the hands of J. F. Stewart, the constable of said Vaugine Township, to be levied upon their goods to satisfy said judgment. They further allege "that they do not owe defendant the indebtedness sued on or any part thereof and never contracted the same or any part thereof."

The defendant, Simpson & Webb Furniture Company, answered, denying the allegations of the complaint. The defendants, Stewart and Cheek, failed to answer, but made default.

No testimony was taken in the case, but the complaint was sworn to. The decree recites that when the cause was reached on the calendar the plaintiffs "come by their attorneys," and the defendant Simpson & Webb Furniture Company "come by their attorneys," and that the defendants Stewart and Cheek "come not but make default;" and the judgment against plaintiffs in said justice's court was set aside, and the defendants were permanently enjoined from enforcing the same in accordance with the prayer of the complaint herein.

The defendants have appealed to this court.

The plaintiffs have not favored us with a brief. The record shows that the answer of the Simpson & Webb Furniture Company was not signed by it or by its solicitors, but the answer was responsive to the issues made by the complaint, and seems to have been treated by the parties and by the court as the answer of the said defendant corporation. We have held in the case of Fannie Coleman against Leo Bercher, this day decided that the omission to sign a pleading is a formal defect or clerical mistake, which the court should allow to be corrected on motion. Where no...