Terry v. Clark

• Citation: 92 S.W. 788
• Parties: TERRY et al. v. CLARK et al.
• Decision Date: 03 February 1906
• Court: Supreme Court of Arkansas

92 S.W. 788

TERRY et al. v. CLARK et al.

Supreme Court of Arkansas.

February 3, 1906.

Appeal from Circuit Court, Hempstead County; Joel D. Conway, Judge.

Action by Carroll Terry and another, by their next fried, against A. B. Clark and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Feazel & Bishop, for appellants. Jas. H. McCollum, for appellees.

BATTLE, J.

Carroll and Due Price Terry, by their next friend, brought an action against A. B. Clark and others, and alleged in their complaint that they are minors, having no guardian; that on 16th day of June, 1903, they were the owners of certain household furniture, of the aggregate value of $97; and that A. B. Clark, claiming that D. P. Terry was indebted to him, sued out an attachment against him before the mayor of Hope, and ex officio justice of the peace, and caused Augustus Kyle, marshal of the town of Hope, to levy the same on the furniture of plaintiffs, to their damage in the sum of $97.

They asked for judgment for $97 against the defendants.

The defendants answered and denied that the plaintiffs were the owners of the property; and alleged that D. P. Terry was indebted to the defendant, Clark; that Clark sued out an order of attachment against D. P. Terry before the mayor of Hope and ex officio justice of the peace thereof, and caused the same to be levied upon the property claimed by the plaintiffs; and that it was the property of D. P. Terry.

Evidence was adduced by the plaintiffs in the trial of this action tending to show that the furniture in question belonged to Gertrude Terry, in her lifetime, and that she died about seven years before the trial, and that she was their mother and they inherited the property from her. They are minors under the age of 16 years. D. P. Terry is their father. He married the second wife after the death of their mother.

The defendants were allowed to introduce evidence, over the objections of the plaintiffs, to prove that D. P. Terry used and controlled the property in question after the death of their mother, as other married people use and control their property.

The court gave the following instruction to the jury, over the objections of the plaintiffs:

"You are instructed that if D. P. Terry gave this property to Carroll and Due Price after he was indebted to Clark, you will find for Clark in this case. If you believe Carroll and Due Price were the owners of this property before his indebtedness to Clark, you will find for...