Ver Steeg Shoe Co. v. Morrow

Supreme Court of Arkansas

Ver Steeg Shoe Co. v. Morrow

103 S.W. 166, 83 Ark. 191, 1907 Ark. LEXIS 34

DecidedJune 3, 1907

StatusPublished

This text of 103 S.W. 166 (Ver Steeg Shoe Co. v. Morrow) 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

Ver Steeg Shoe Co. v. Morrow, 103 S.W. 166, 83 Ark. 191, 1907 Ark. LEXIS 34 (Ark. 1907).

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Opinion

Battle, J.

Ver Steeg Shoe Company recovered a judgment against H. E. Morrow, and sued out an execution thereon. Morrow then brought suit in the Marion Chancery Court to enjoin proceedings under the execution, alleging that he was not served with process in the action in which the judgment was rendered and bad no notice of its pendency, and that he had a good defense against it. Assuming that he had a good defense, the evidence adduced at the hearing proved that he was served with summons in due time and had lawful notice, and' failed to appear, but made default, and lost the benefit of his defense, if he had any. But the chancery court found that there was no evidence to show .that the summons in the original action showed whether Ver Steeg Shoe Company was an individual, partnership or corporation; that the pleadings and other papers in the case have been lost, and no evidence was adduced to show their contents; and that Morrow, therefore, was not bound to interpose any defense in the original action; and perpetually enjoined the enforcement of the execution.

The capacity in which Ver Steeg Shoe Company sued did not affect its right to recover. Whether it be an individual, partnership or corporation, it had the right to sue and maintain its action. There was no evidence that Ver Steeg Shoe Company was required to show in what capacity it sued. The court erred in enjoining the execution.

Decree reversed, and complaint dismissed for want of equity.

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Battle, J.

Ver Steeg Shoe Company recovered a judgment against H. E. Morrow, and sued out an execution thereon. Morrow then brought suit in the Marion Chancery Court to enjoin proceedings under the execution, alleging that he was not served with process in the action in which the judgment was rendered and bad no notice of its pendency, and that he had a good defense against it. Assuming that he had a good defense, the evidence adduced at the hearing proved that he was served with summons in due time and had lawful notice, and' failed to appear, but made default, and lost the benefit of his defense, if he had any. But the chancery court found that there was no evidence to show .that the summons in the original action showed whether Ver Steeg Shoe Company was an individual, partnership or corporation; that the pleadings and other papers in the case have been lost, and no evidence was adduced to show their contents; and that Morrow, therefore, was not bound to interpose any defense in the original action; and perpetually enjoined the enforcement of the execution.

The capacity in which Ver Steeg Shoe Company sued did not affect its right to recover. Whether it be an individual, partnership or corporation, it had the right to sue and maintain its action. There was no evidence that Ver Steeg Shoe Company was required to show in what capacity it sued. The court erred in enjoining the execution.

Decree reversed, and complaint dismissed for want of equity.

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Bluebook (online)

103 S.W. 166, 83 Ark. 191, 1907 Ark. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ver-steeg-shoe-co-v-morrow-ark-1907.