Loewenberg v. Gilliam

Supreme Court of Arkansas

Loewenberg v. Gilliam

79 S.W. 1064, 72 Ark. 314, 1904 Ark. LEXIS 129

CourtSupreme Court of Arkansas

DecidedMarch 19, 1904

StatusPublished

Cited by3 cases

This text of 79 S.W. 1064 (Loewenberg v. Gilliam) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Loewenberg v. Gilliam, 79 S.W. 1064, 72 Ark. 314, 1904 Ark. LEXIS 129 (Ark. 1904).

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Opinion

Riddick, J.

(after stating the facts). We are of the opinion that the court erred in admitting the affidavit of Gilliam to establish the account for supplies which plaintiffs claim to have furnished Jones, the mortgagor. In suits upon accounts such evidence is permitted by the statute. Sand. & H. Dig. § 2972. But this is not a suit on account. It is an action against a person not connected with the account, in which the amount of damages is measured by the amount of supplies furnished by the plaintiff to the mortgagor. Though it is material, therefore, to establish the amount of the account, that cannot be done by an ex parte affidavit, for the statute does not apply to such a case, and the account must be established as other facts are proved.

We do not think the other objections raised by defendant are well taken. If objection is made to the fact that the names of the partners are not set out, that can be cured by amendment.

Judgment reversed, and cause remanded for a new trial.

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Riddick, J.

(after stating the facts). We are of the opinion that the court erred in admitting the affidavit of Gilliam to establish the account for supplies which plaintiffs claim to have furnished Jones, the mortgagor. In suits upon accounts such evidence is permitted by the statute. Sand. & H. Dig. § 2972. But this is not a suit on account. It is an action against a person not connected with the account, in which the amount of damages is measured by the amount of supplies furnished by the plaintiff to the mortgagor. Though it is material, therefore, to establish the amount of the account, that cannot be done by an ex parte affidavit, for the statute does not apply to such a case, and the account must be established as other facts are proved.

We do not think the other objections raised by defendant are well taken. If objection is made to the fact that the names of the partners are not set out, that can be cured by amendment.

Judgment reversed, and cause remanded for a new trial.

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Bluebook (online)

79 S.W. 1064, 72 Ark. 314, 1904 Ark. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/loewenberg-v-gilliam-ark-1904.

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