Clark v. Gibson

Ringo, Chief Justice, delivered the opinion of the Court: The plaintiff by his assignment of errors, to which there is a joinder, presents but two questions. 1st. Did the court err in overruling his motion to dismiss the suit for the want of a sufficient bond for costs ? 2d. Did the court err in overruling his demurrer to the plaintiff’s declaration? The fact that the plaintiff was a non-resident of this State when the suit was commenced, is not established by any thing contained in the record, and, therefore, upon the principles stated and acted upon by this court, in the case of Smith, et als., vs. Dudley, ex'r of Talbot, dec'd, decided at the late term thereof, we are bound by law to presume that the decision of the court, refusing to dismiss the suit on that ground, was correct. In addition to which, it has been held by this court, in the case of Means vs. Cromwell, 1 Ark. Rep. 247, that the failure of a non-resident plaintiff to file bond and security for costs, is matter in abatement only, which may be taken advantage of by plea, or motion made in pursuance of the provisions of the Statute in such case provided, and although that decision, so far as it relates to the taking advantage of this objection to the proceedings by motion, was governed by statutory provisions since repealed; yet the Statute, approved March 3, 1838, Rev. Stat. 201, under the provisions of which this motion was made, notwithstanding it changes materially the law on this subject, as to the manner of interposing this defence by motion, does not in any respect change the nature of the defence itself, or prescribe the time within which the defendant shall be at liberty to avail himself of it; and, therefore it must be regarded still as matter in abatement only, and whether interposed by plea or by motion made under the provisions of this Statute above cited, when the plaintiff is a non-resident of this State at the time of the institution of his suit, must be made in the order, and within the time prescribed by law, for pleading in abatement any personal disability of the plaintiff to sue; and if the defendant, instead of availing himself of this defence at the proper time, interposes a defence to the merits of the action, the law regards him as waiving the objection altogether, upon the same principle, by which the defendant is precluded by law from insisting upon any other matter of defence in abatement, if he omits to take advantage of it in the established order of pleading, or pleads to the action itself, in bar thereof, either before or after presenting the matter in abatement: and upon this principle the defendant below must be considered as waiving upon the record, his motion to‘dismiss, when he demurred to the declaration, and his adversary joined in the demurrer. The law regards a general demurrer to the declaration as a defence to the, action itself, in bar thereof, and therefore does not permit him to assign as error any thing in the decision or judgment of the court given upon said motion; for it appears tha't he has, by his own voluntary act, waived this matter of defence, and rested his defence upon matter in bar of the action itself. The second question presented by the assignment- of errors, although argued at the bar, and mainly relied upon by the plaintiff, that there is a material variance between the obligation set forth in the declaration, and the one exhibited upon oyer, is not presented by the record before us, because it does not appear therefrom that óyer of the writing obligatory sued on, though regularly craved, was ever granted; and notwithstanding a joint and several writing obligatory, purporting to have been made and executed by the defendant below, and three others, whose names are not'mentioned in the declaration, corresponding in every other respect with the one therein mentioned and described, appears in the transcript of the record before us, it does not in any manner authorized by law appear to have been made a ¡part of the record of this case; and, therefore, this court in adjudicating the case, is not at liberty to regard it as a part of the record thereof. Divested of which, the record presents simply a declaration in debt, upon a writing obligatory, legally sufficient and technically formal in all its parts, the demurrer to which was correctly overruled by the .court. Wherefore, it is the opinion of this court, that there is no error in the judgment of the Circuit Court given in this case for the defendant in error, and that the same ought to be, and is hereby, in all things affirmed with costs.