70 Ark. 195 | Ark. | 1902
This suit is ancillary to the suit of Theresa L. Organ et al., which had but recently been determined in the Crittenden circuit court when this cause was instituted therein, and an appeal had been taken to this court, and styled here the Memphis & Liltle Rock Railroad Company as Reorganized v. Organ; that is to say, it is confessedly based upon the decree of the court below in the former suit. That suit was determined in this court on the 14th October, 1899, and on that day was reversed and remanded. (67 Ark. 84.) The only question involved in the opinion rendered was the application of the statute of limitations, and it was proved as a fact in the case that the action was barred as to all the claimants in the case, except seven or eight of the more remote heirs under disabilities of one kind or another at the time the original suit was instituted, on August 3, 1880. The decree of the court below in the cause was remanded with directions to proceed according to the opinion then rendered. The contention of appellant in its motion to dismiss the case is that 'when a decree is reversed on appeal in this court, the case stands as if no decree or judgment had ever been rendered in the court below, and this reversal affects all the appellees in the suit to that extent. We are of opinion that that is the correct rule, as applied to this case; for, while it was said by this court that some of the claimants were not barred, this of course meant that they were not barred as appeared from the record in the case. The reversal and remanding of the case for further proceedings meant necessarily a remanding of the whole case, for that order would be superfluous as to the heirs shown to be barred by the statute of limitations, and could only apply to those who did not appear in the record to be barred. It was manifestly a reversal of the entire ease, for there was no reservations in the decree of reversal in favor of those said to be not barred.
The ancillary case, having had its foundation swept from under it, must necessarily fall.
We think the principle of West v. East Coast Cedar Co. 110 Fed. Rep. 727, applies to the issue made in the motion to dismiss and response thereto in this case.
Action dismissed.
