77 Ark. 234 | Ark. | 1905
(after stating the facts.) The issues were made by the filing of the allegation and interrogatories in the justice’s court and appellee’s answer thereto. These were the issues before the circuit court on appeal, and they were correctly stated in appellant’s first and second prayers for instructions.
The circuit court on appeal acquires such jurisdiction as the justice had, and. can render only such judgment upon the pleadings and proof as the justice could or should have rendered. Kirby’s Digest, § 4682; Whitesides v. Kershaw 44 Ark. 377.
The third and fourth prayers were not responsive to any issues raised by the pleadings, and the court did not err in refusing them.
The court erred in directing the jury^to return a verdict in favor af appellee for the value of the property taken and sold under execution. That was not the issue for the jury. In directing the peremptory verdict, the court doubtless concluded that the uncontradicted evidence showed that the appellee was not indebted to the judgment debtor, and had no property in her possession belonging to him which she had not offered to surrender, and that the sale under the execution issued from the justice’s court was void. If this were true, still restitution was not a question for the jury under the issue joined. An order for restitution might have been made by the court upon motion of appellee after verdict in her favor, and an opportunity given the appellant to resist such motion. The circuit court, by reason of and as incident to its appellate jurisdiction, had power to make such order in the same case upon proper motion and showing. 3 Cyc. 467 e.; Haebler v. Myers, 132 N. Y. 363.
For the error indicated, the judgment is reversed, and the cause is remanded for further proceedings.