Lochridge Dry Goods Co. v. Daniels

Hart, J., (after stating the facts). (1-2-3) It is contended by counsel for appellant that the claim of the Daniels Transfer Company against the Lochridge Dry Goods Company is barred by the statute of limitations. No written pleadings were filed either in the justice court or the circuit court. It is well settled in this State that in proceedings before a justice of the peace, the pleading may be oral and no greater formality is required when the case reaches the circuit court on appeal. When the case reached the circuit court, the defendant may have. indicated orally what his plea was, but there is nothing in the record to show that appellant pleaded the statute of limitations. The fact that it asked for a verdict in its favor was not equivalent to pleading the statute of limitations. The court’s attention should have been specifically .directed to the fact that appellant pleaded the statute of limitations in order that that plea might be available to the defendant as a defense to the action. This was not done, and it is settled that where the defense of the statute of limitations was not raised in the court below, it can not be raised for the first time in the Supreme Court. Mt. Nebo Anthracite Coal Company v. Martin, 86 Ark. 608. (4) Again, it is contended 'by counsel for appellant that no appeal was taken by the Daniels Transfer Company from the judgment of the justice of the peace and that, therefore, the circuit court acquired no jurisdiction to render judgment in favor of the Daniels Transfer Company against the Lochridge Dry Goods Company. It is true we have held that the filing of an affidavit is a prerequisite to the granting of an appeal by the justice, and that where there was no showing that it was waived by the party against whom the appeal is taken, the circuit court should, on motion, dismiss the appeal. Billingsley v. Adams, 102 Ark. 511; Merrill v. Manees, 19 Ark. 647, and cases cited. (5) In the case before us, no motion was made to dismiss the appeal because no affidavit for appeal was filed by the Daniels Transfer Company, and no objection was made to the jurisdiction of the circuit court. All of the parties to the action appeared in that court, and the case was tried on its merits. Therefore, it may be considered that no affidavit for appeal was necessary on the part of the Daniels Transfer Company. It was waived by the Lochridge Dry Goods Company going to trial in the circuit court without any objections on that account. Moreover, the transcript of the justice of the peace shows that the Lochridge Dry Goods Company was made a party defendant to the action instituted by the Ferguson-McKinney Dry Goods Company. At whose instance it was made a party is not shown. But the record does show that it appeared before the justice of the peace, and that the case was tried on its merits. The record also shows that the Lochridge Dry Goods Company and the Daniels Transfer Company both appeared in the circuit court, and that the case was there tried on its merits. The Ferguson-McKinney Dry Goods Company and the Kansas City Southern Railway Company against which judgment was rendered, both filed affidavits for appeal. The justice of the peace had jurisdiction of the parties and of the subject-matter of the suit. The object of the appeal was to lodge the case in the circuit court for a trial' de novo. As we have already seen, all of the parties interested appeared in the circuit court and the case was there tried on its merits, without any objection being' made as to the form or method of procedure, and it is too late now to make such objection. The only contention made by the appellant in the court below was that there was not sufficient evidence to warrant a verdict against it. Appellant asked the circuit court to direct a verdict in its favor. This the court refused to do. No objection was made by the appellant to the instructions given by the court, and no exceptions were saved thereto. Therefore, the only question for our determination on this appeal is whether or not there was sufficient evidence to warrant the verdict against appellant. The undisputed evidence shows that the Ferguson-McKinney Dry Goods Company sold the bale of sheeting in question to W. W. Townsend, and shipped it to Mena over the line of the Kansas City Southern Railway Company. The Ferguson-McKinney Dry Goods Company consigned the goods to itself at Mena, Arkansas, and gave an order on the Kansas City Southern Railway Company for the delivery of the goods to Townsend. The Daniels Transfer Company had general authority to receive from the railway company all goods to be delivered to either Townsend or to the Lochridge Dry Goods Company. The undisputed evidence shows that the Daniels Transfer Company received the bale of sheeting in question and paid the freight thereon. It was the custom of the transfer company and their practice to deliver the goods to the merchants who had purchased them and at the same time to check up the goods so delivered with the freight bill and to deliver the freight bill, or expense bill as they called it, to the merchant who received the goods. Evidence ivas adduced by Townsend and by the Lochridge Dry Goods Company to show that they did not receive the bale of sheeting in question. But, as we have already seen, the testimony shows that the transfer company always delivered the freight bill or expense bill at the time the goods were delivered to the merchant. The expense bill for the bale of sheeting in question was afterward found in the possession of the Lochridge Dry Goods Company. It was also shown that goods which were not ordered by Townsend or by the Lochridge Dry Goods Company were sometimes received by them, and that sometimes the wholesale merchant would substitute goods. The evidence also shows that another bale of sheeting which was shipped at the same time to Townsend by the Ferguson-McKinney Dry Goods Company was received by the Lochridge Dry Goods Company. Under these circumstances, we think there was sufficient proof to warrant the jury in finding that the bale of sheeting in question was received by the Lochridge Dry Goods Company, and wa's used by it. Therefore the judgment will be affirmed.