Ledbetter v. Mandell

109 N.Y.S. 602 | N.Y. App. Div. | 1908

Clarke, J.:

On December 8, 1896, there was filed in the clerk’s office of the United States Court for the Southern District of the Indian Territory a complaint in equity by the H. B. Claflin Company, K. Mandell & Co., and certain other persons, plaintiffs, against H. Munzesheimer and Sam Daube and W. A. Ledbetter, defendants. That bill alleged that in November, 1896, the defendants Munzesheimer a.nd Daube executed a deed of assignment under the laws of the State of Arkansas in force and operation in the Indian Territory, in which deed the plaintiffs therein were named as creditors and are all preferred creditors to a large amount. The plaintiffs then set forth the nature of the stock and property conveyed by said deed of assignment and alleged that the defendant Ledbetter, acting as assignee under the trust conferred upon him, took the' inventory of said property and filed his bond and oath thereby qualifying as assignee: “ that by the terms of the law under which the said Ledbetter acts as assignee, he is not permitted to sell the said property at retail, nor to keep the store open for the collection of debts or for the supplying of customers who are already indebted to the estate with other goods, nor is he permitted to sell at private sale any of the real estate or other property of said estate, nor is he permitted to replenish the stock of goods, nor to sell at either public or private sale of notes and accounts, but he is required to sell within 120 days and .after advertising for thirty days the real and personal property belonging to the said estate and to sell only for cash.” The bill goes- on, to set up the facts by reason of which plaintiffs allege that, to sell.the goods as required by law within 120 days and at public outcry would be in effect to sacrifice and destroy the. same to cred- ■ itors and thereby prevent the payment of debts, and alleges “ that unless the said Ledbetter is restrained from selling under thé laws of Arkansas, as an assignee of said estate, he will sell the property as required by said law, which will result as heretofore alleged ; ” it further alleges that Munzesheimer & Daube are insolvent and “ that it is for the best interest for all the creditors of said estate preferred, in said deed of assignment, that the said Ledbetter should be, by order of this court, relieved of the requirement and necessity of acting under the said deed of assignment in the sale of said .property, and should be restrained from selling said property as Such assignee, and the said Ledbetter, who is a lawyer actively engaged in the practice of his profession, but knows nothing of the.mercantile business, together with an experienced merchant, who thoroughly understands the details of such business, should in the judgment of the creditors, be appointed joint receivers for all the property of said estate * * * that' may have passed by virtue of the deed of assignment;” wherefore plaintiffs prayed “for the restraining order herein suggested and for an order appointing two joint receivers of said estate, requiring of them sufficient bon'd to protect the rights of all parties, and to render said estate' safe, also giving to them broad and comprehensive power in the management and control of the property of said estate and in the protection óf the same, with such restrictions and requirements as the-court may.see proper to require, but in any event relieving the said Ledbetter of his duties and responsibilities as assignee under the deed of assignment requiring the proceeds to be paid as named in said instrument, except when otherwise ordered by this court,” and “ for such other relief, general and spécial, as may be necessary in the premises.” Munzesheimer & Datibe, and Ledbetter, assignee of said" firm, interposed an answer, waived the issuance of service, entered their appearance and admitted the allegations of the bill. Thereupon the court made an order on the 8th of December, 1896, filed on the ninth, “ That the said W. A. Ledbetter, as assignee, is hereby enjoined and restrained from selling any of the property conveyed to him under and by virtue of said deed .of assignment as therein provided, and said W. A. Ledbetter is hereby appointed receiver to take possession of, manage, control and dispose of all of said property conveyed to him, as such assignee, and the is appointed co-receiver to act in connection with the said W. A. Led-better in accordance with the provisions of this order as hereinafter set forth.” It was further provided that upon the execution and filing of the oath and bond required by law.in- the sum of $50,000, by the said Ledbetter, “ the title to all the lands, tenements, goods, • chattels, funds, assets, moneys, credits, dioses in action,, rights and interest of every kind, name and nature, either in law or equity, or any part thereof belonging to same as conveyed in said deed of assignment, shall be vested in said W. A. Ledbetter and lie' shall take possession of said property and shall from thence forward until further orders of this court, or the judge thereof, have full possession, custody and control thereof, and shall be vested with the title so far as it shall be necessary to collect the debts and preserve the assets and the property for the benefit of creditors named in said deed of assignment.” - There were directions as to what he should do in managing and disposing of the estate for the best prices’he could obtain., It was further ordered “ that the proceeds realized from the sale of any of said property, and from the eollectioiis on notes and accounts and other evidences of debt, shall be placed to the credit of W. A. Ledbetter, receiver, and shall be subject only to his check.”

The first object of the suit had been accomplished upon the entry of this order. Ledbetter, as assignee, had been disposed of. The duties and obligations imposed upon him by law as assignee, which, in the view of the plaintiffs, would have been disastrous to their interests, had been wiped out. Instead' of the estate being wound up under the Assignment Law of the State of Arkansas,^* which by the Acts of Congress (U. S." Laws of 1890, chap. 182, § 31; 26 IT. S. Stat. at Large, 94, § 31) had been extended to the Indian Territory, it was to be administered by a receiver appointed by the court. By the acts of the plaintiffs the estate had been brought into court, there to be administered and distributed.

Gn the 24th of February, 1897, an order, was entered which pro-. Tided that “it having been made to appear to the court that W. A. Ledbetter, receiver, has sold and disposed of all the property and effects on Ins hands as such receiver, belonging to the estate [of] Munzeslieimer & Daube, and that he has now. in his hands funds which ought to be distributed among the- creditors of the estate, * * . * the said "W. A. Ledbetter, as such receiver, is hereby ordered and directed to file in this court a full and.complete report ' and statement exhibiting his dealings'with said estate, showing the amount of money received by him and the disbursements made by him. And W. H. L. Campbell, the master in chancery of this court, is hereby ordered and directed to examine said report of W. A. ■Ledbetter, receiver, and report to this court as soon as practicable his conclusion as to whether or not said report is in all things correct. Said W. A. Ledbetter, as such receiver, is hereby ordered and directed to disburse among the creditors of said estate all funds in his hands as such receiver, according to the terms of the deed of assignment executed to him by Munzeslieimer & Daube on the 9th day of November, 1896,. but the said * "x" * receiver is. hereby ordered and directed to reserve sufficient funds in his hands to pay the commission to which he is entitled, and all other expenses incurred in the management, and- control of said estate as assignee and receiver.”

After the entry of- this order the docket shows the following entries: On the 10th of March, 1897, “petition for allowance of certain claims filed;” on the 80th of April, 1897, “protest ,against same filed;” on the 3d of February, 1899, “dismissed.” Thereafter, on July 31, 1899, Ledbetter, as receiver, filed wliafc" is denominated his cross-complaint against K. Mandell & Co., plaintiffs in the original equity suit, and on the. 5th of September, 1899, filed his first amended .cross-bill in lieu of his first cross-bill, in which he sets up the proceedings had, the order made, and the receipt by him, in compliance with the order of the court, of the property which realized about $48,000, which paid said creditors, after deducting expenses, about sixty-five cents on the dollar; that in order to obtain- the appointment of the said receiver, said Iv. Mandell & Go. represented in their petition that said firm of Mnnzesheitner & Daube were indebted to them in about the sum of $7,500 and that they were sureties upon-the notes of said firm in the sum of $3,515.26 to Sinsheimer, Levinson & Go.; that they, had been compelled ,to take up and pay off said notes, and were entitled to receive the dividends due to the said Sinsheimer, Levinson & Co. under the said deed of assignment ; that in order to obtain the payment of said indebtedness,, the said X. Mandell & Co. made. affidavit proving said claim against the estate; that they averred in said affidavit that they did not hold any collateral or other security, and that by means of said affidavit, and believing the same to be true, the petitioner was induced to pay X. Mandell & Co. the sum of $6,609; that in truth and in fact X. Mandell & Co. did hold at the time of making said affidavit and said deed of assignment and at all times since, up to and including the time of the payment of said indebtedness, collateral security in the form of notes given to Munzeslieimer & Daube by solvent people, which collateral pledged to the said X. Mandell & Co. exceeded in actual cash value $16,736.71; that since the time of the execution of said affidavit by X. Mandell he has collected a large amount upon the aforesaid collateral, the exact amount of which the petitioner is unable to state, and the said X. Mandell is notified to make and file in this cause a full and complete statement thereof showing the amount collected and uncollected; that in addition to the above security X. Mandell & Co. holds as collateral for said indebtedness mortgages upon certain real estate situated in the city of New York, and the said Mandell &. Co. are notified to produce said mortgages on the hearing of this cause. He is also notified to produce any and all other securities held by him to protect him against liability from said Munzeslieimer & Daube, as well as to secure him in the payment of all sums due him from said Munzeslieimér & Daube. The said X. Mandell is notified to produce upon the trial a full and accurate-statement showing all his accounts and transactions with the said Munzeslieimer & Daube, < r either or both of them, at the time of the execution of the assignment aforesaid, at the time of the execution of the affidavit by X. Mandell as aforesaid, and at the time of the trial of this cause. The petition further alleged that said X. Mandell & Co. were entitled to collect nothing from the petitioner at the time the dividends were paid to them ; that at the time he was informed of and discovered the falsity of the affidavit aforesaid, and the facts set forth, to wit, on the 1st day of June, 1899, the petitioner had in his hands money due the said K. Mandell & Co. in about the sum of $1,755, and that a knowledge of these facts had also come to some of the creditors of the said Munzesheimer & Daube, who were entitled to participate in the dividends arising from the funds in the hands of the petitioner, as receiver, and the petitioner was required and notified by said creditors not to pay to said Mandell & Co. any of the . funds held by him and belonging to said K. Mandell & Co., and was furthermore required by said creditors to appropriate the said funds to the reimbursement, in so far as the saíne would go, of the dividends paid by the petitioner to said Mandell & Co. on account of their claims against the funds and property in the hands of the petitioner as receiver.

He further alleges that by reason of the premises, he is entitled to have refunded to him by Mandell & Co. the money so collected by them from him and to have the same restored to the trust fund in his hands in order that the same may be appropriated under the terms of the assignment and orders of the court, to the payment of the claims justly due to creditors of said Munzesheimer & Daube. He further alleges that there is yet due to creditors preferred by the said assignment the sum of $35,000, and that with the exception of the funds held by Mandell & Co., there is practically nothing with which to pay them, the said Munzesheimer & Daube being wholly insolvent, and he asked judgment that he be permitted to appropriate the $1,750 in his possession belonging to K. Mandell & Co. in part satisfaction and reimbursement of said sum of $6,609 so wrongfully and fraudulently collected by Mandell, and have judgment for the money paid in order that lie may restore the same to the trust funds in his hands, and pay it out legally to the persons entitled thereto under the orders of the court; that IL Mandell & Co. be required to discover to the' court'what other property and moneys or other things and dioses in action he has in his possession and in his control belonging to said Munzesheimer & Daube, and ' which, under the terms of the deed of assignment and the orders o.f the court appointing the petitioner receiver, pass to the petitioner in trust for distribution, and that the said Mandell & Go. be required to surrender up to the petitioner alj such property.

On June-5, 1900, a judgment was entered as follows: “ And this ■ cause came on to be heard on the amended cross bill of W. A. Led-better, assignee and receiver of Munzesheimer & Baube, herein tiled on the 5.th day of September, 1899, against EL. Mandell, doing business under the trade name of EL. Mandell & Co., one of the plaintiffs in this cause, and it appearing to the court that on the 3rd day of Febry., 1899, the clerk of this court, through mistake and inadvertence and without any order of the court to that effect, but on account of a confusion of the number of this case with the numbers , of a list of cases, which had been ordered stricken from the docket, 'wrote opposite this case on the minutes of the court, the word ‘Dismissed,’ it is ordered that the said entry, be and the same is hereby annulled, held for naught, and expunged from the minutes of the court because of the facts aforesaid; and it appearing to the court that the said EL. Mandell has been personally served with a copy of the original cross bill of the said W. A. Ledbetter, and has had ample time and notice to appear and make answer unto the same and has failed to do so, the court is now.here of the opinion, that the material allegations of said cross bill as amended should be, and the same are hereby taken for confessed as against the said K. Mandell; and it is ordered .and decreed that the said W. A. Ledbetter, receiver of the property and effects of the said Munzesheimer & Baube, in the custody of the court, in this cause do have and recover of and from the said K. Mandell the sum of Seven thousand seven hundred and ninety-two dollars, which he will distribute and pay out to the parties entitled thereto under the orders of this court in this cause.”

It is upon said judgment that this suit is brought. The complaint was dismissed upon the trial because it was 'conceded that the so-calléd cross-complaint was filed at a term subsequent to the date on which the word “Dismissed” appeared on the docket, the ground being, that the entry,of that word upon the docket or calendar was equivalent to a final order dismissing the original action, and that having been dismissed it could not be revived by the subsequent filing of a cross-bill against one of the plaintiffs, and that plaintiff could not be again brought into the court in which he had originally brought himself without the issuance and service of process upon him.

If that litigation had ceased, Mandell was out of court and the judgment would have had no validity unless he had been personally served or voluntarily appeared.

An erroneous entry upon a calendar of the word “ dismissed,” not made in the presence of the court, and not in consequence of its-.order, is not to be taken as'a final judgment dismissing the case. There is no evidence in this record to show that a judgment was actually entered dismissing the action; the entry upon the docket is no evidence of such a judgment.

In Baker v. Kingsland (10 Paige, 366) proceedings were insth tnted by a creditor of a decedent to enforce the payment of his claim . against the estate. The indebtedness was dénied by the executors. The only evidence which the creditor produced before the surrogate to prove the existence of his debt was a copy from the Supreme Court clerk’s office of the docket of a judgment against the executors of the decedent. Upon appeal the court said: “If the judgment against the personal representatives of the decedent had been even primafaoie-Tgvoof of the original indebtedness the copy of the docket 'of .the judgment in the Supreme Court was'not legal evidence that any such judgment had been recovered. Since the act of 1840^* took effect, no docket of a judgment subsequently recovered in the Supreme Court is valid for any purpose, .unless it is entered in the county clerk’s office. And the copy of the docket never was legal evidence to prove the, existence of a judgment except in some special cases provided for by statute. ■ The record of the judgment, or a sworn or. exemplified copy thereof, must be produced.” That case was cited and followed in Handly v. Greene (15 Barb. 601).

In Schenectady & Saratoga Plank Road Co. v. Thatcher (6 How. Pr. 226) the court said : “ The statute^† requires him (the clerk) ‘immediately after entering the judgment,’ to proceed to make up the roll, and among the papers necessary to constitute- a complete judgment roll is ‘ a copy of the judgment,’ 'that is a copy of the entry of the judgment made by the cleric, in the judgment book. Such entry in the judgment book and copy in the roll is the only record evidence that judgment has been perfected.”

In Forsyth v. Campbell (15 Hun, 235) plaintiff attempted to prove the existence of a judgment by producing a certified copy of an order for judgment made by the court. Appellant argued that since the- statute required that the clerk should enter judgment upon such an order, it should be presumed that the clerk performed his duty,, in the absence of evidence to the contrary: The court refused to adopt this suggestion and held that there was not sufficient proof of the judgment. ' •

In the following cases it was held that no appeal could be taken from an order directing judgment until the judgment had been actually-entered by the clerk. (Knapp v. Roche, 82 N. Y. 366; Stevens v. Central Nat. Bank, 162 id. 253.)

In Lentilhon v. City of New York (3 Sandf. 721) it was held that an entry made by the clerk by the direction of the court, on receiving a verdict, of the judgment to be rendered thereon is not the judgment itself, and not until the clerk had entered the judgment in the-judgment book was the judgment complete.

The statutes of Arkansas contain provisions for the entry of a judgment in a judgment book which are similar to the requirements of our Code of Civil Procedure (§ 1236 et seq.), and it would seem, therefore, that the rule established by the above decisions should apply.

Mansfield’s Digest of the Statutes of Arkansas provides: “ Sec. 3948. The clerk must keep among the records of the court a book to be called the ‘judgment book,’ and in entering judgments or decrees therein shall leave a space or margin on the record in which to enter a memorandum of the satisfaction or setting aside of any such judgment or decree. * * * Sec. 3950. All judgments and decrees, whether rendered by the court or by confession, shall be entered by the clerk in the ‘ judgment book ’ in the order of their date. * * * Sec. 3952. He shall, immediately after the rendition of any judgment or decree, enter the same in the judgment book, in which shall be alphabetically cross-indexed all the judgments of the court, according to the surnames of the plaintiff and defendant; * *

Despondent cites two Massachusetts cases holding that a docket entry is sufficient evidence of "a judgment. As under the practice in that Commonwealth the docket entry seems to be final judgment those cases do not affect the case as here presented. ■ It cannot be that a court may not cure an error of its clerk. That having been done, the erroneous entry is as if it had never been made.

It is claimed that-the order of the court granting the prayer of the original bill of complaint and appointing Ledbetter receiver was the final order in the case, which, having been entered, ousted the court of jurisdiction over Mandell. I do not think so. The purpose of that proceeding was to bring this estate into court, to have it under the control of the court, to be disposed of by the court in the interests and for the benefit of the. complainants and the other creditors. Having obtained that relief, the plaintiffs were still in court for the purpose of the administration of the estate, and were and continued to be parties, had fights in court and duties to the court, and continued there so long as the estate was open and the receiver, was acting under the order of the court which they had obtained.

Respondent contends that the. cross-complaint was a document-unknown and unauthorized under the laws of. the State of Arkansas, and hence was a nullity at any stage of the proceedings. He refers to various sections of the Oode of Arkansas bearing on the subject of pleadings, none of which provides for the service of a cross-complaint and concludes from that fact that a cross-complaint is unauthorized. It seems to me that the following cases show that a cross-complaint or cross-bill is not unknown, to equity practice in the State of Arkansas.

Pillow v. Sentelle (49 Ark. 430) was an action to foreclose a mortgage, the widow and heirs of the mortgagor being joined as defendants. To this action the widow answered and filed a cross-complaint in which she alleged that she held a lien on' the mortgaged property by virtue of the mortgage to secure the payment of certain 'notes given by the mortgagee to ■ her as security for a loan and asking that in a foreclosure of the mortgage this lien of lrers be satisfied. She made the plaintiff and her cod'efendants in the original complaint defendants to her cross-bill, but did not have new process served upon any of them. The court there held that as the codefendants did not voluntarily appear, “ It is as necessary ■ to have service of process on them, actually or constructively, in one case as in the other, l>ut it is not necessary to have service on the defendant who.is the plaintiff in the originad .action”

In Horner v. Hanks (22 Ark. 573, 591) the Supreme Court of that State, in discussing the subject of cross-bills, said: “ More often than otherwise a cross-bill is to obtain discovery from the plaintiff of facts contrary to or different from those stated in the bill, but concerning its matter; or'to obtain a decree against the plaintiff in'the original suit and'the authorities refer to this sort of cross-bill, unless special mention is made of a cross-bill, filed to obtain a decree against a co-defendant. This latter sort of cross-bill is as well grounded in practice as the other, although it partakes somewhat of the nature of an original bill against the co-defendant, it being necessary to compel an. answer from him by process, that not ievng necessary in .this State as against the plaintiff in the original suit.”

In Heer Dry Goods Co. v. Shaffer (51 Ark. 368) plaintiff brought an action on a promissory note to which defendants answered and pleaded a set-off. Thé Supreme Court in that ease stated that a set-off was in every respect essentially a cross-action brought by the defendants against the plaintiff, and that court further stated : “ It is not necessary to summon or warn a plaintiff in an action to answer a set-off pleaded by the defendant. There is no reason why he should be (summoned). The set-off is pleaded in answer to his complaint and he is bound to take notice of it. A summons or warning order could answer no useful purpose. The statute without requiring notice in any form to be given to him, says he must file his reply to the set-off on or before the calling of the cause for trial.”

In Sandels <fe Hill’s Digest of the Statutes of Arkansas,^* section 5112 states, “ A defendant may file a cross-complaint against persons other than the plaintiff, and have proceedings thereon as follows:”. Here follow provisions for service of process upon the co-defendants. In a foot note to that section the compilers state, “All of the defendants must be seiwed or appear, but it is not necessary to have service on the plaintiff.” (Citing Pillow v. Sentelle, supra.)

Respondent contends that the cross-complaint was not germane to the issues raised in the complaint, and, therefore, conferred no jurisdiction.

Whether or not the cross-complaint was germane to the '.issues raised by the complaint was á question which was before the court in the Indian Territory when-it had this cross-complaint under consideration and was necessarily -decided iri tlm affirmative by that court when it rendered the judgment in question. That, decision, whether in conformity to the laws of Arkansas or - not, cannot be attacked collaterally,; at'least in the absence-of contradiction by statutes or decisions. (Laing v. Rigney, 160 U. S. 531; cited and followed in Mutual Reserve, etc., Assn. v. Phelps, 190 id. 147.)

In the Laing case a woman sued her husband for a divorce in New Jersey alleging in her complaint that he had committed various acts of - adultery in the State of New York. Defendant, appeared in the action and filed an answer in which he denied -tire allegations of adultery in the- complaint. ■ Subsequently plaintiff. filed a supplemental bill’of complaint wherein she alleged that defendant had committed adultery with a certain named person - at various times since the commencement of the suit and prayed for the same: relief as that sought by the-original petition.'■ Thereafter , .the: court ordered that-the supplemental.' complaint be served upon the defendant personally and that defendant appear- and answer the supplemental complaint. This orde,r was - served upon the defendant in New York city. Defendant did not appear or answer the ’supplemental complaint and -after a reference a decree was entered granting plaintiff a divorce and alimony. Plaintiff afterwards brought an action in this State upon the decree of the New Jersey court to recover the' amount awarded- for alimony and costs. The defendant alleged in his answer to this action that the New Jersey court Obtained no jurisdiction to make any personal decree' against. him on the supplemental complaint. On appeal to the United States Supreme Court it was held that in the' absence of any statute or reported" decision to the contrary, it must find the law of New Jersey applicable to the case in the decree of the New Jersey court, and if the New Jersey, court had misinterpreted that law' defendían t’s only-remedy was by'appeal from that decision. It seems ■ to me that, although as a matter of fact the defendant was actually -served with and had notice of the filing of tlie supplemental complaint in that action, although the service was out of the State, yet that decision must control'"this case. The ctiurt in' this case.considered that having once obtained jurisdiction over the plaintiffs in this action, it had jurisdiction to render judgment .upon the cross-bill without further service of process ; and there appearing to be no statutes or decisions to the contrary, and the decisions of the courts of Arkansas concurring, this court must presume that the court of the Indian Territory correctly interpreted the law- of that territory. Whether or not the cross-bill was gérmane to the issues raised by the complaint, whether or not it was proper to set forth in that bill facts which had matured after the commencement' • , of the original action, and whether or not it was a good cross-bill under the laws of Arkansas were' all facts which that court must have passed upon in arriving at the .judgment in question, and they cannot be brought in issue collaterally in this proceeding.

The respondent further contends that the order by which Led-better was directed to disburse among the creditors of the estate all funds in his hands as receiver, according to the terms of the deed of assignment, was a final order ending the proceeding, and cites Smith v. Woolfolk (115 U. S. 143). Upon careful reading it appears, however, that the proceedings there declared-to be ineffectual because of' non-service of process, were instituted by the filing of a petition after the court had distributed the proceeds of the sales of lands against which the original proceeding had been directed ; had directed the receiver to collect the available assets of the estate and report to the next term, of the court; the receiver had so reported and an order had been made allowing him to retain the additional sum as his compensation, so, as the court said, “ that nothing remained of the original cause in which Woolf oik and his wife were in any way concerned.” It was under such circumstances that the court held: “It follows that the record of the proceedings and decree of the Circuit Court of Chicot County, subsequent to the decree made in the case of The Creditors of Junius W. Craig v. Emma J. Wright, Executrix, and Others, on October 28, 1868, was not binding upon 'Woolfolk and wife, and could not be received in evidence against them.” .

In the case at bar the order relied upon did not purport to be a final order winding up the estate and discharging the receiver. On the contrary, it sent his accounts to the master in chancery. It appears upon the docket that subsequent proceedings were had thereunder; a petition for the'allowance of certain claims Was filed, Against which objections were filed. '■ There was no finality,

■ It 'seems to me that Mandell, having sought the jurisdiction of the -court, having appeared therein, by attorney, having become a party .plaintiff and having succeeded in bringing the., estate' into court;' Was himself there and remained there.for jurisdictional purposes-until a final order was.entered winding up and disposing of these ' proceedings, of which'there is no trace in this record. The proceeding being still open, the; estate being still in court, the receiver not having been discharged, and. Mandell having received, as is. alleged, apportion of that estate upon false representations, he must be considered still in- court for. the purposes of ■ malting restitution. , ■

I conclude, therefore, that we are bound to give full faith and credit to the judgment of the United States Court for the Southern District of the Indian Territory - here sued upon, that it was error to dismiss the complaint upon this record, and that the judgment should he reversed and a. new trial ordered, with costs to the . appellant to abide the event." '

Patterson, P. J., Ingraham, Laughlin and Houghton, JJ*., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

* See Mansfield’s Digest Stat. Ark. 219, chap. 8. See, also, Sandels & Hill’s Digest Stat. Ark, 277, cliap 8, and Kirby’s Digest Stat. Ark. 255, chap. 8, — [Rep. •

* See Laws of 1840, chap. 386, § 25 et seq.— [Rep.

† See Code Proc. § 279. et seq.— [Rep.

* See Mansfield’s Digest Stat. Ark. § 5023.— [Rep.