Niemeyer v. Hudspeth

54 Ark. 88 | Ark. | 1891

Battle, J.

The confession of error filed in this court by appellees relieves us of the duty to inquire into the correctness of the declarations of law made by the circuit court. The question now is, shall the judgment of the court below be reversed and the cause remanded for a new trial, or shall this court render a judgment on the conclusions of facts found by the circuit court?

When new trial granted upon reversal on special findings. The ruling of the court on the demurrer to appellees' answer indicated to some extent what was necessary to prove to recover judgment. According to that ruling it was not necessary for appellees to prove that the property in controversy had not been paid for and delivered to appellant before the orders of attachment under which it was seized were issued; yet the circuit court found that such payment and delivery were made before the orders of attachment were issued. Appellees say that they were able to prove that no such payment or delivery was made, and that they failed to do so on the trial because of the ruling of the court on the demurrer. Whether this be so or not, it is not necessary for us to inquire. It is manifest, however, that they might have been misled by the ruling of the court, and thereby induced to make no effort to adduce evidence within their control. Under such circumstances it would be unjust to deprive them of the opportunity of adducing such evidence by rendering a judgment on the facts found by the court. Without expressing what the judgment of the court upon the facts found by it should have been, the judgment rendered is reversed, and the cause is remanded for a new trial.