Williams v. Williams

• Decision Date: 20 April 1914
• Docket Number: 273
• Citation: 166 S.W. 552,112 Ark. 507
• Parties: WILLIAMS v. WILLIAMS
• Court: Arkansas Supreme Court

166 S.W. 552

112 Ark. 507

WILLIAMS v. WILLIAMS

No. 273

Supreme Court of Arkansas

April 20, 1914

Appeal from Clay Circuit Court, Western District; W. J. Driver Judge; affirmed.

STATEMENT BY THE COURT.

This is a suit by Cinda Williams and Ed Williams against Susie Williams to recover the possession of a team of mules valued at five hundred dollars. Cinda Williams for herself testified substantially as follows:

I am the owner of the mules in controversy. In the year 1906 I purchased two mules from J. M. Hawks, and later on swapped these two mules, with their harness, for the mules in controversy, and gave twenty dollars in exchange. My husband had been dead about a year before I purchased the mules. My sons all lived at home with me at the time I bought them, but in the spring of 1909 I permitted my son, Lon Williams, to take the mules away from my house and to keep them until his death in December, 1912. After the mules were in the possession of my son, Lon, I always furnished the money to him with which to pay the taxes on them. A few days before he died, I was at his house, and he told me that he would never be able to work any more and that I could take the mules home. His widow, Susie Williams, came home with us after the funeral in a wagon drawn by the mules in controversy. Before she went home I told her that the mules belonged to me. She drove them home, however, and subsequently refused to give them to me, and I brought this suit to recover possession of them.

Two other children of Mrs. Williams testified that the mules belonged to their mother, and that she always furnished the money with which to pay the taxes on them after she let her son Lon have them.

J. M Hawks, for the defendant, testified substantially as follows:

I do not remember definitely, but my impression is that I sold the pair of mules to Lon Williams, and not to his mother. I know that subsequently Lon Williams claimed the mules, and, with my advice, swapped them for the mules in controversy. Mrs Susie Williams testified for herself as follows:

I was married to Lon Williams about three years before he died, and at the time of our marriage he had the mules in controversy in his possession. He claimed them as his own, and neither Cinda Williams, his mother, nor any of her children, claimed to have any interest in them. After the funeral of my husband I went home with Mrs. Cinda Williams and stayed all night. We went to the funeral in a wagon drawn by the mules in controversy. While I was at the home of Cinda Williams, after the funeral, she told me that the mules should not be taken off of the place, and said that they were her mules.

Other evidence was introduced by Susie Williams tending to corroborate her testimony.

The jury returned a verdict for the plaintiffs, and the defendant has appealed.

Judgment affirmed.

C. T Bloodworth, for appellant.

1. One who has no interest in property, can not jointly maintain an action for recovery. 14 Ark. 151; Id. 141; 25 Ark. 458; 1 Am. & Eng. Ann. Cas. 981, and notes; 34 Cyc. 1424.

2. The evidence is clear that Lon Williams held possession and control of the mules for more than three years prior to the commencement of the action. The action was barred. 44 Ark. 29; Kirby's Dig., § 5064.

3. The verdict should have been set aside because of the conduct of the jury in separating without permission of the court, after they had retired to consider of their verdict, and because some of them were seen talking to parties other than those having authority to address them. Kirby's Dig., § 6198; 95 Ark. 428.

4. A new trial should have been granted because of newly discovered evidence on a material point, which was discovered after the trial, was not cumulative and was not and could not have been known to appellant before or during the trial. 66 Ark. 612; 99 Ark. 122; 69 Ark. 546; 97 Ark. 290; 103 Ark. 589.

5. When at the return of the verdict, one of the jurors, when they were being polled, answered, "I don't think the verdict is right, but agreed to it for the sake of harmony," the court should have refused to accept it, but should have sent the jury out again. Kirby's Dig., § 6204; 31 Ark. 196; 69 Ark. 626.

Cinda Williams, pro se.

1. Appellant raised no question in the lower court as to a misjoinder of parties, and can not do so here. If a defect of parties is not raised by demurrer or answer, it will be deemed as waived. 97 Ark. 560.

2. The action was not barred. The evidence is conclusive that Lon Williams merely borrowed the mules, in which case his possession would be the possession of appellee.

3. The granting of a new trial on the ground of newly discovered evidence is a matter of discretion on the part of the trial court, and unless that discretion is abused, this court will not interfere. 99 Ark. 121. Besides the evidence wanted was merely cumulative. 2 Ark. 353; Id. 145; 91 Ark. 492. No diligence was shown.

OPINION

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

Cinda Williams and Ed Williams were the plaintiffs in this action, and the jury returned a verdict for the plaintiffs. It is now contended by counsel for defendant that, under the undisputed evidence, Ed Williams had no interest in the mules, and that he and Cinda Williams could not maintain a joint action for them. In this connection it may be stated that no objection was made to the instructions given by the court. If the jury believed the testimony of the plaintiffs, the mules belonged to Mrs. Cinda Williams, one of the plaintiffs, and it was immaterial to the defendant that she joined Ed Williams with her in the suit to recover possession of the mules. It is the settled law of this State that the Supreme Court will only reverse a judgment for errors prejudicial to the rights of the party appealing, and the defendant in this action can not be prejudiced by the fact that Ed Williams was made a party plaintiff with his mother. We have not set out the testimony in full, and do not deem it necessary to make any extended comment on it. It may be true, as stated by counsel for defendant, that the great preponderance of the evidence was in her favor, but that question was settled by the verdict of the jury, and we are not at liberty to disturb the verdict. The jury were the sole judges of the credibility of the witnesses, and the weight to be given to their testimony. According to the testimony of Mrs. Cinda Williams, the mules belonged to her, and it is not within our province to disturb the verdict, even though we may believe that the jury was wrong in its finding.

A new trial is also asked because of newly discovered. evidence. Counsel for defendant say that they can prove by two of the clerks in the store of Mr. Hawks at the time he sold the mules that Mr. Hawks sold them to Lon Williams, and not to his mother. Counsel also claims that he can prove by a Mr Shoat, the person to whom the first mules were swapped for the mules in controversy, that he swapped with Lon Williams, and that the mules belonged to him. Counsel insists that neither he nor his client knew of the existence of this testimony, and could not by reasonable diligence have discovered it before the trial. In the case of Mutual Life Insurance Co. v. Parrish, 66 Ark. 612, 52 S.W. 438, the court held: "To prevent a miscarriage of justice, it is proper to grant a new trial for newly discovered evidence rebutting the...