Anthony v. Sills

Smith, J., (after stating the facts). We think appellants should have been allowed to verify their answer, by stating that they believed its recitals to be true. (Kirby’s Digest, § 6120.) The court sustained the motion to require the answer to be verified; but it does not appear that the complaint was dismissed, because that order was not complied with. Upon the contrary, it appears that after making this order, a demurrer was heard and sustained. No useful purpose could have been subserved by verifying a demurrable answer. Appellees say the answer was demurrable, because it pleads only conclusions of law, and that there was nothing contained in its recitals, which would have defeated defendants ’ right to recover possession of the lands. It will be observed that the answer .alleges that the plaintiffs, who sued as the children of William Simmons, are all over the age of twenty-one years, and under this allegation their homestead rights had terminated, and it was denied that the land sued for had ever been the homestead of the widow, and it was alleged that if it had ever been, that she had abandoned her homestead, prior to the institution of this suit, and there were attached, as exhibits to the answer, copies of deeds from two of the plaintiffs to the appellants, Jones, Campbell -and Dunaway. The answer was therefore not demurrable. It is said, however, that appellants can not raise these questions, because the motion for a new trial was not filed in apt time, and that therefore there is no motion for a new trial. It may be conceded that there is no motion for a new trial, yet, that fact furnishes no ground for our refusal to review the action of the court, in sustaining the demurrer. The action of the court, in sustaining the demurrer and dismissing the complaint, was an error which is apparent from the face of the record, and in such cases no motion for a new trial is necessary. Ford v. State, 100 Ark. 517; Independence County v. Tomlinson, 95 Ark. 565; Smith v. Hollis, 46 Ark. 17; Norman v. Fife, 61 Ark. 33; Ward v. Carlton, 26 Ark. 662; Hare v. Shaw, 84 Ark. 32; Steck v. Mahar, 26 Ark. 536; Union County v. Smith, 34 Ark. 684; Douglass v. Flynn, 43 Ark. 398; Badgett v. Jordan, 32 Ark. 154, The judgment of the court, sustaining the demurrer, and rendering the judgment against appellants is therefore reversed, and the cause will be remanded with directions to the court below to overrule the demurrer and hear the cause upon its merits.