Fort v. Hundley

5 Ark. 179

• Court: Supreme Court of Arkansas
• Decided: July 15, 1843
• Status: Published

Opinion

By the Court,

Ringo, C. J.

The assignment of errors questions the correctness of the judgment of the court, given upon the demurrer to the first plea, and also upon the motion to strike out the.second plea filed, as well as that pronounced on the demurrer to the petition.

The first plea is clearly within the principles decided by this Court in the case of Dillard vs. Noel, 2 Ark. Rep. 456, in relation to the truth of which our opinion remains unchanged, and therefore we hold the judgment upon the demurrer to this plea correct.

The other plea in abatement was stricken out; and not having been made part of the record in the case, by exception to the opinion of the Court ordering it to be stricken out, cannot be in any manner regarded by this Court; for, although it is iraprovidently and improperly transcribed by the clerk as part of the record, it in fact forms no part of it. But if the court below had erred in adjudicating said pleas, the plaintiff in error could derive no advantage whatever therefrom, and could not, in fact, be now permitted to embrace such error in his assignment of errors, or in any manner question the propriety of the judgment thereupon given; because, by subsequently demurring to the action in bar thereof, he voluntarily abandoned every defence in abatement, as has been repeatedly ruled by this Court.

The petition in this case is, in every respect, made out in strict conformity with the form in such case prescribed by the statute, creating the form of remedy. The Legislature was, unquestionably, competent to create or prescribe such remedy, and according to its will dispense with such averments as are required in pleadings governed and prescribed by the common law. This case is not, therefore, within any principle ruled in this Court in the case of Clary & Webb vs. Morehouse, Adm., 3 Ark. Rep. 261, nor indeed any of the cases cited by the plaintiff in error. They are all actions in which the form of pleading is, in most respects, prescribed and governed exclusively by the common law, the rules of which have no application whatever to such petition as the present; the form of which is entirely prescribed by statute. There is, therefore, no error in the proceedings and judgment of the Circuit Court in this case. The judgment is, therefore, in all things affirmed with costs.