51 Ark. 341 | Ark. | 1888
Whitehill sued Butler in the circuit court to recover an amount due on account. Butler admitted the amount claimed, but filed a set-off and asked for judgment over against Whitehill. There was a jury trial, which resulted in a verdict and judgment in favor of Butler. Whitehill moved for á new trial, but his motion, as the complaint alleges, was. continued by the court, for action to a special adjourned term, which was never held, and so his remedy at law for relief against the judgment was lost. He brought this suit in equity for a new trial. In addition to the facts above stated his complaint set forth the pleadings in the action at law, the court’s charge to the jury, and an allegation that the court had admitted in evidence at the trial certain oral proof of the title to lands for the use and occupation of which Butler sought to recover against him. The history of the case is very meagerly set out and no statement of the evidence upon which the verdict was based is attempted. The appeal is from the judgment dismissing the complaint upon demurrer.
The loss of the remedy at law for relief against the judgment unmixed with laches upon the appellant’s part, coupled with the admission of the evidence alluded to, and one or more inaccurate statements of the law in the chargeto the jury, are relied upon for a new trial in equity.