Hollingsworth v. McAndrew

Wood, J., (after stating the facts.) The bill of exceptions only includes the answer which the lower court struck from the files. The record shows that the circuit court heard the motion to strike “upon said motion and answer and upon the mandate and opinion of the Supreme Court in this cause, and upon the briefs of attorneys in said court in said cause, and upon the judgment of this court originally rendered herein and appealed from, and upon the records and pleadings of the probate court, and, at the request of defendants, upon oral testimony as to an oral answer interposed by defendants in the original trial of the cause in this court, and the contents of such oral answer.” In the absence of a bill of exceptions showing what the oral testimony was, the finding of the trial court that “defendants interposed an oral answer, in which all of the defenses contained in the answer filed at,the present term were set up, except the defense denying that plaintiff had been duly appointed administrator of the estate of Seth Hollingsworth and the defense of adverse possession,” must be taken by us as conclusive. So must the further finding: “That every question raised by the answer filed at the present term except that of adverse possession was litigated in this court at the former trial.” While the court found that the defense denying that appellee had been appointed administrator of the estate of Seth Hollingsworth was not set up in the oral answer, yet the court found further that such defense “was litigated.” In other words, we must take it that the lower court on the former trial determined that appellee had been duly appointed administrator of the estate of Seth Hollingsworth. Such determination was necessary in limine, in order to ascertain whether or not the court had jurisdiction to pass upon his petition, and we must presume that the court properly determined that fact, in the absence of any showing to the contrary. So every question now presented by appellants except that of adverse posseásion, and the question as to whether or not the circuit court acquired jurisdiction on the remand of the cause from -this court, was presented and determined on the former appeal. In the opinion of this court on the former appeal, McAndrew v. Hollingsworth, 72 Ark. 446, this court adopted the statement of facts made by appellant in that, case (appellee here) as correct. That statement set forth the issues of law and fact which were presented for the court’s decision, and was accepted by appellants here (appellees there) as correct, except in a matter of punctuation, which the decision rendered immaterial. The question in this case from the beginning has been whether or not the lot in controversy could be sold to pay the debts of Seth Hollingsworth. Appellee’s application to the probate court for authority to sell presented that question. Appellants were parties to that proceeding, and resisted the application. They should have presented in their answer all the defenses they had. On final judgment they must be held to have litigated all the questions that could have been settled that were necessary for the determination of the issue presented. If the defense of adverse possession had been set up and proved, this court would not have reversed the judgment. If it had been set up, and the lower court had refused or failed to pass upon it, the cause would, not have been finally disposed of here, but would have been remanded for new trial. The law does not tolerate the trying of causes by piecemeal. It was settled on the former appeal that the lot in controversy was subject to the debts of Seth Hollingsworth. In that case we said: “The widow, Mrs. Hollingsworth, abandoned the homestead of her deceased husband by selling and conveying the land constituting it after his death. She now claims and holds the land as an independent purchaser under a deed executed to her by Minnie Strange after such abandonment.” This holding shows that there was no adverse possession by Deborah Hollingsworth, and precludes the setting up of such defense after the remand, of the cause to the lower court. This court also said on the former appeal: “There being no minor children, the lot in controversy has become an asset in the hands of the administrator of Hollingsworth for the payment of debts.” This was an end of the whole matter, and settled against appellants every defense that they might have set up to appellee’s petition to sell. The cause was not reversed and remanded for new trial or further proceedings, but “with instructions to the lower court to render judgment in accordance with the opinion.” As there was a final judgment on the issue presented, the doctrine of res judicata is applicable to all defenses that might have been.raised on the issue joined. Church v. Gallic, 76 Ark. 423, cases cited, and authorities cited in 24 Am. & Eng. Enc. Law (2 Ed.), 767. The lower court did not err in its interpretation of the instructions from this court, and its judgment was in conformity therewith. It had nothing further to do than to enter judgment. The remand of the cause by this court and the filing of the mandate with the clerk of the lower court within the time prescribed by the statute gave the lower court jurisdiction. The filing with the clerk of the circuit court was a filing in the court, in contemplation of the statute, section 1236, Kirby’s Digest. The clerk is the custodian of the papers and records of the court; and when court papers and records are filed with him, they are in law Hied in the court. Rule 14 of this court prescribing that the judgment of this court “should be entered of record in the circuit court” is merely a direction to the clerk as to the proper method of making up the record for this court. It is not mandatory and peremptory in the sense of being essential to the jurisdiction of the lower court when a cause is remanded to it from this court. It had no reference to that. The judgment is affirmed.