101 Ark. 302 | Ark. | 1911
(after stating the facts.) 1. The court erred in holding that the decree against appellant cancelling the deeds through which he claimed title from appellees was a consent decree on the part of appellant. The court entered separate decrees against each of the defendants. The one against Thompson was a consent decree, so far as his rights were affected, but the decree, so far as concerned the rights of the other defendant, appellant here, was not by consent; at least the record does not show that it was a consent decree.
While the appellant and Thompson were joined as defendants, the decree shows that their rights and interests were not identical. Each was affected in a different way by the decree, and the court entered the decree in the form of two separate decrees, in order, doubtless, to mould the remedy to the respective interests of the parties. It was as if there had been separate actions by the same plaintiff against each of the defendants.
Although the decree of record against appellant does not specifically describe the land, it does recite that the cause was heard “upon the complaint with the exhibits,” and these do describe the land. When the entire record is considered, there can be no doubt that the decree of the chancery court cancelled the deeds through which appellant claimed title from the appellees, and this was an eviction, provided appellees were notified by appellant to defend that suit.
2. We are of the opinion that it was for the jury to determine whether or not appellees had been notified by appellant to appear and defend in the suit brought against him in the chancery court.
The court erred therefore in directing a peremptory verdict for appellees.
The judgment is reversed; and the cause is remanded for a new trial.