Austin v. Hemphill

Hart, J., (after stating the facts). The first ground relied upon for a reversal of the judgment is that the circuit court erred in refusing to dismiss the plaintiff’s cause of action for the reason that the justice’s court was without jurisdiction, and therefore the circuit court could not acquire jurisdiction on appeal. In making this contention, counsel relies upon § 6412 of Crawford & Moses’ Digest, and Little Rock Brick Works v. Hoyt, 87 Ark. 313, and cases cited. Section 6412 reads as follows: “ Ordinary actions shall be commenced by summons,but, before summons is issued, the plaintiff shall file with the justice the account, or the written contract, or a short written statement of the facts on which the action is founded.” We cannot agree with counsel in this contention. In the first place, our statute regulating the practice in justice ’s courts is for the benefit of the defendant, so that he may not be surprised, and to protect bim from a second suit on the same ground. The plaintiff is required to indicate the matter upon which the claim is founded. Jacks v. Nelson & Hanks, 34 Ark. 531. In the case at bar, the judgment against the defendant as well as the judgment against the garnishee shows that the cause of action was on an open account for $180. This was a short written statement of the facts, and each judgment reads, respectively, that the defendant and the garnishee were present in court and that evidence was heard in the case. The court had jurisdiction of the subject-matter of the action, and the parties, by entering their appearance to the proceedings, gave the court jurisdiction over their persons. The facts recited in the judgment entry show that they were not misled in preparing their defense. The judgment against the garnishee expressly shows that he appeared in^court and testified that he had a half of a bale of a cotton belonging to the defendant, worth $57. The judgment against the defendant shows that he appeared in court and that evidence was heard before judgment was rendered in favor of the plaintiff. The Hoyt case has no application. There the suit was commenced by Hoyt against Arch Reddick and the Little Rock Brick Works upon an instrument in writing that was filed as the plaintiffs’ cause of action. It showed that Arch Reddick was in account with Hoyt, but did not show any account against the Little Rock Brick'Works. Judgment was rendered by default in the justice’s court against the Little Rock Brick Works. In the circuit court a motion to dismiss was sustained because no account, or short written statement of facts on which the account was founded, was filed in the justice’s court, as required by the statute, before the summons was issued. The case was dismissed because the statement of facts filed contained no reference ,whatever to any claim against the Little Rock Brick Works, and it did not enter its appearance in the action. Actions may be commenced either by summons or by the voluntary appearance of the parties. Here the parties appeared in court and contested the claim of the plaintiff, and the circuit court properly overruled their motion to dismiss the appeal. The alleged defect in the issuance of the summons before filing the account or a short written statement of facts was waived by going to trial and judgment without at any stage of the cause bringing the matter to the attention of the justice. It is also insisted that the .judgment should be reversed on account of surprise at the testimony of the plaintiff to the effect that John Williams had made a payment on the account sued on, which prevented the statute of limitations from running. Cato Austin admitted that he did not pay the account, and testified that John Williams was jointly liable with him on it. Hemp-hill having sued him on the account, he was put upon notice that Hemphill claimed that the account had not been paid, and it was his duty to have had John Williams present at the trial as a witness if he wished to contest the account. The matter, under the circumstances, was in the discretion of the court, and the court did not abuse its discretion. Augusta Cooperage Co. v. Plant, 163 Ark. 49, and cases cited. No other grounds are relied upon for a reversal of the judgment, and it will therefore be affirmed.