Streudle v. Leroy

• Decision Date: 31 January 1916
• Docket Number: 140
• Citation: 182 S.W. 898,122 Ark. 189
• Parties: STREUDLE v. LEROY
• Court: Arkansas Supreme Court

182 S.W. 898

122 Ark. 189

STREUDLE v. LEROY

No. 140

Supreme Court of Arkansas

January 31, 1916

Appeal from Crittenden Chancery Court; Chas D. Frierson, Chancellor affirmed.

Decree reversed.

Wright Miles, Waring & Walker, of Tennessee, for appellants.

1. The chancellor erred in overruling the defendants' motion for decree pro confesso. Decree in favor of defendants should be entered here on the pleadings. No reply was filed to the answer and counter-claim as required by section 6115 Kirby's Digest. A counter-claim is defined by Kirby's Dig., § 6099. The action of the chancellor is clearly violative of section 6192 Id.; 25 Ark. 20; 25 Id. 105; Ib. 86.

2. The court erred in not rendering judgment for appellants on their motion on June 11, 1914, for failure of appellees to answer their counter-claim. 69 Ark. 114; 71 Id. 364. Where a party filing a counter-claim moves for judgment for want of an answer and that motion is overruled and no answer is filed thereafter such party will not be considered to have waived the failure to reply and upon appeal will be entitled to decree. 33 Ark. 107; 47 Id. 496; 74 Id 104; 80 Id. 228; 119 Ark. 133; Kirby's Dig., § 6137; 56 Ark. 73; 73 Id. 344; 88 Id. 406; 80 Id. 65; 9 Id. 535; 22 Id. 533.

3. Any finding against appellants is clearly against the preponderance of the evidence. The burden was on appellees. All expenses of manufacturing, caring for and loading were to be borne by appellees. 19 A. 1008; 14 So. 672; 16 Id. 627; 132 U.S. 491.

Brown & Anderson, of Tennessee, for appellees, filed no brief.

OPINION

HART, J.

On November 25, 1913, appellants and appellees entered into a written contract whereby the former agreed to furnish the latter with a saw mill and the latter agreed to supply its own hoop machine and appliances at Proctor, Arkansas. Appellants agreed to furnish appellees logs and strips of timber necessary for the manufacture of hoops and appellees agreed to manufacture hoops for appellants at a stipulated price. The contract provided that the transactions and moneys paid out or received under the agreement should be under the personal control and custody of John Reichert, one of appellants for which appellees should pay $ 3 per day. It was also agreed that L. B. Leroy, one of the appellees, should receive out of the pay roll $ 5 per day for his services as manager of the mill when in operation. The contract provided that all of the operating expenses and repairs should be at the expense of appellees; and also provided the basis on which appellants and appellees should share the profits and bear the losses of the enterprise.

Other provisions were incorporated into the contract which the views we shall hereinafter express render it unnecessary for us to incorporate in the statement of facts.

Appellees filed a bill against appellants in which they sought an accounting. They alleged that there were 182 working days in the period covered by the contract; that the mill had a capacity to manufacture 40,000 hoops per day; that appellants failed to furnish them with material sufficient to enable them to run at full capacity; and that appellants and appellees became partners in the enterprise by the terms of the contract.

The complaint was filed on the 20th day of April, 1914; on the 26th day of April, 1914, appellants filed what they termed an answer and cross-complaint. They denied that they became partners with appellees under the terms of the contract; denied that they failed to carry out the contract on their part; denied that the mill had a capacity of 40,000 hoops per day; alleged that they furnished to appellees the logs and strips of timber called for by the contract; alleged that appellees failed to comply with the terms of the contract on their part; alleged that in order to keep the business going they furnished to appellees large sums of money which they were not required to furnish under the contract, and, by way of counter-claim, asked judgment for the amount found to be due them.

Appellees did not file an answer to the counter-claim of appellants.

On June 11, 1914, appellants filed a motion in which they asked for judgment against appellees in the sum of $ 3,119.04 because of the failure of appellees to answer their counter-claim. On the 27th day of January, 1915, the court heard the case upon the pleadings and the depositions on the part of appellees. The court found that the cross-complaint or counter-claim of appellants should be dismissed for want of prosecution and rendered judgment in favor of appellees.

On January 30, 1915, appellants filed a motion to vacate the decree entered of record January 27, 1915, and stated the grounds therefor in their motion.

On February 6, 1915, the court took under consideration the motion to vacate the decree until April 1, 1915, and time was given each party within which to take proof.

On the 26th day of April, 1915, the court entered a decree opening the decree of January 27, 1915, and after hearing the motion of appellants for a decree in their favor filed June 11, 1914, overruled the same. The case was heard on the depositions taken by both parties and a decree was entered in favor of appellees for the sum of $ 1,201.85, being a smaller amount than was awarded them by the former decree. The case is here on appeal.

It is first contended by counsel for appellants that the court erred in not...