Stroud v. Conine

• Decision Date: 05 October 1914
• Docket Number: 149
• Citation: 169 S.W. 959,114 Ark. 304
• Parties: STROUD v. CONINE
• Court: Arkansas Supreme Court

169 S.W. 959

114 Ark. 304

STROUD v. CONINE

No. 149

Supreme Court of Arkansas

October 5, 1914

Appeal from Benton Circuit Court; J. S. Maples, Judge; reversed.

STATEMENT BY THE COURT.

This action was commenced before a justice of the peace by A. J Decker against H. L. Stroud to recover the sum of $ 375. A written complaint was filed and the foundation of the action was a written contract between the plaintiff and the defendant, set out in the complaint, which, in effect recites that Stroud had sold to one Gregory a certain manufacturing plant for the sum of $ 25,000, payable in annual installments of $ 5,000 each; that for the assistance given him by Decker in making the deal Stroud was to pay Decker $ 125 upon the payment of each $ 5,000; and that when all the payments, amounting to $ 25,000, had been made he was to pay Decker an additional $ 125 on each $ 5,000 paid making in all $ 1,250 for the assistance of Decker in effecting the deal.

The complaint alleged that Stroud and Gregory had entered into the written contract mentioned in the agreement above referred to, that the same is being carried out and is still in full force and effect, that three installments of $ 5,000 each had been paid by Gregory to Stroud, and that Stroud was indebted to him in the sum of $ 125 on each installment. The plaintiff prayed judgment against the defendant for the aggregate sum of $ 375.

On the 17th day of November, 1909, judgment by default was rendered in favor of the plaintiff against the defendant before the justice of the peace. On December 20, 1909, the defendant Stroud filed a motion before the justice of the peace to set aside the judgment against him and to grant him a new trial. On the same day the justice of the peace entered an order setting aside the judgment and granting the defendant a new trial. He then set the case for trial on the 1st day of January, 1910. On December 24, 1909, the defendant Stroud filed affidavit for appeal from the judgment rendered against him on December 17. On January 1, 1910, the plaintiff's attorney appeared, but the defendant made default, and judgment was again rendered in favor of the plaintiff against the defendant for the sum of $ 375. Stroud filed in the circuit court a petition for a writ of certiorari. At the March term, 1910, of the circuit court, Decker appeared by counsel, waived the issue and service of the writ of certiorari and consented that the transcript in the appealed case be taken as the record in the case, and also filed a motion to dismiss the appeal. The two cases were continued from term to term until the March term, 1913. At that time they were consolidated by consent and heard by the court. Before trial the plaintiff Decker had died and the case was revived in the name of W. H. Conine as his administrator. The circuit court dismissed the writ of certiorari and the appeal of Stroud, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

Judgment reversed and cause remanded.

McGill & Lindsey, for appellant.

Appellee, pro se.

OPINION

HART, J., (after stating the facts).

It is contended by counsel for the defendant that the amount sued for was in excess of the jurisdiction of the justice of the peace and that his judgment was, therefore, void. In this contention we think counsel are right.

In Ruling Case Law, volume 1, page 352, it is said: "A contract to pay money in installments is divisible in its nature, that is, each default in the payment of an installment may be the subject of an independent action provided it is brought before the next installment becomes due; but each action should include every installment due when it commenced unless a suit is, at the time, pending for the recovery thereof, or other special circumstances exist."

In the case of Fort Smith Paper Co. v. Templeton, 113 Ark. 490; 168 S.W. 1092, the court held: "A suit for monthly installments of rent due under a lease specifying a yearly rental payable in monthly installments is a 'single cause of action' within Constitution 1874, article 7, section 40, limiting the jurisdiction of justices of the peace in matters of contract to controversies where the amount does not exceed $ 300, and where the amount of the installments exceeds $ 300 the justice has no jurisdiction."

In the case of State v. Scoggin, 10 Ark. 326, the defendant had executed a written instrument agreeing to pay the State for the use of internal improvement the sum of $ 400 in five equal installments, payable in one, two, three, four and five years after date. The court held that several installments being due, a separate action could not be brought on each installment so due, but that one action for the breaches of the contract must be brought, and that for this reason the aggregate amount of installments due was the measure of damages and determined the jurisdiction of the court.

So here, there was a contract...