107 Ark. 185 | Ark. | 1913
(after stating the facts). The complaint stated a cause of action at law, which, of course, would not have been sustained by the facts appellant’s attorney stated he expected to prove upon the trial and if no amendment had been filed and motion to transfer to equity made, the court’s action in dismissing the suit would have been proper, but such dismissal would not have precluded the bringing of another suit in equity upon the facts as alleged in the amendment. The court, however, permitted the filing of the amendment and motion to transfer and upon renewal of the motion to dismiss thereafter, granted it. Its action in doing so was erroneous. The cause should have been transferred to the chancery court. Sec. 5991 Kirby’s Digest; Rowe v. Allison, 87 Ark. 211; Newman v. Mountain Park Land Co., 85 Ark. 208; Lucas v. Futrell, 84 Ark. 551; Wood v. Stewart, 81 Ark. 51.
The court having refused to transfer it appellants’ only remedy was by appeal. Dunbar v. Bourland, 88 Ark. 153.
The probate court order, set out in the pleadings, as amended, directing the settlement of the administrator of Z. Smith with J. M. Phelps and the surrender of the title bond and possession of the lands upon the cancellation of the notes for the remainder of the purchase money thereof and the satisfaction of the judgment obtained' upon such notes was without authority and did not operate to bind appellants.
The law. provides in cases where a decedent has purchased lands during his life time and not completed the payment therefor at the time of his death that the probate court, if it shall be of the opinion that the assets of the estate are not sufficient to pay for the lands that the court may order the administrator or executor to sell at public sale all the right, title, interest and claim of the testator or intestate in and to said lands. Sec. 201 Kirby’s Digest.
The case, being undeveloped, we will not attempt to pass upon the question of whether appellants are barred by laches or limitations from the prosecution of this suit.
For the error indicated, the judgment is reversed and the cause remanded with instructions to transfer it to the chancery court and for further proceedings there in accordance with law and not inconsistent with this opinion.
