500 CASES IN THE SUPREME COURT [27 Ark. Carnall v. Clark ex use HersheY. [DECEMBER CARNALL v. CLARK ex use HERSHEY. PsAcTICE—When limitations pleaded after default.—The rule that a default will not be set aside to permit a defendant to p lead the statute of limitations has no application when the default has been irregulary taken, or if, in point of fact, the defendant had- no notice of the pendency of the suit. BURDEN OF PRooF—Where limitations pleaded to set-off—The burden of proof lies on the party who substantiall y asserts the affirmative of the issue and on repliCation of the statute of limitations to a plea of set-off, the defendant will not be permitted to affirmatively . show that his cause of action accrued within a time not barred by the statute. CONDITIONAL SALES — Relationship of parties and remedy.—On a conditional sale, the relationship of debtor and creditor does not exist between the parties—the property in the thing sold . passes to the vendee, subject to be divested on performance of the condition as stipulated, and if the ven-dee part with the property before the time.to redeem expires, the vendor's only remedy is by an action for damages for breach of the covenant, and not for the recovery of the property. APPEAL FROM SEBASTIAN CIRCUIT COURT. Hon. E. D. HAM, Citreuit Judge. Clark . & Williams, for Appellant. First. We submit that the court erred in striking out the defendant's plea of the statute of limitations to the plaintiff's
27 Ark.] OF THE STATE OF ARKANSAS. 501 TERM, 1872.] CarnaII v. Clark ex use Hershey. action. It is true that this court, in the case of Pennington vs. Gibson, 6 Ark., 447, held that they would not where timely ser-. vice had been had, set aside a judgment by default to let in the plea of statute of limitations. The principle • f that case was never applied, except where the defendant had been duly served with process, and where he had been guilty of laches or default. See Wilson vs. Phillips, 5 Ark., 183; Browning vs. Roane, 9 Ark.; 354; Robinson vs. State .Bank, 11 Ark., 301; Hudson vs. Breeding, 7 Ark., 445. A judgment by default without notice is a nullity. See Act 4 17th, February, 1859, Pamphlet Acts, page 172. Second. The court erred in giving to the jury the instruct tions asked ° by plaintiff. The written agreement of 3d of . January, 1861, given in evidence, neither involves a promise to pay, nor the acknowledgment of a debt, nor any undertaking of Carnall on which a suit could be 13rought. If it had, then the suit should have been on the instrument, and debt on simple contract could not be maintained. , 1 Chitty Pl., 103; Goodman \et al. vs. Jenkins, 14 Mass., 93; Andrews vs. Montgomery, 19 Johns., 161; Fletcher vs. Pratt, 7 Black., 522; Compton vs. Jones, 4 Cow., 13; Jewell vs. Shrayrel, 4 Cow., 564. The law presumes that it was taken as payment, and the note or obligation is at thd risk of the party taking it. White-beck vs. Van Ness, 11 Johns. 408; 'Breed vs. Dook et al., 15 Johns., 241; Arnold vs. Camp, 12 Johns., 409; Markle vs. Hat-field, 2 Johns., 455; Wilson vs. Force, 6 Johns., 110; 1 Smith's 'Leading Cases, marg. p., 146. • But, in case the notes were 'taken as conditional payment only, and not as mere collateral security, on the one hand, or absolute payment on the other, the plainiiff could not recover without first accounting for these notes, and showing that she had used due diligence to collect them, and failed. Herring vs. Sanger, 3 John's Cases, 71; Tyson vs. Pollock, 1 Penrose & Watts., 375; Chapman vs. Stermitz, 1 Dallas, 261; Ozee vs. Spencer, 2 Whart., 253.
502 CASES IN THE SUPREME COURT [27 Ark. Carnal! v..Clark ex use Hershey.. [DECEMBER U. M. Rose, for Appellee. The judgment recites that the defendant was served with process ; more than thirty days before the commencement of the term. • This recital is evidence of that fact, and supplies the place of the summons. Acts 1858, page 172. After the term expired the court could not set aside the judgment. Smith vs. Stinnett, 1 Arlc., 497; Byrd vs. Brown, 5 4rk., 709; Rawdon vs. flapley, 14 Id., 203.; Biscoe vs. Sandefur, lb.. 568; Ashley vs. Hyde, 6 Id., 100; Cossitt vs. Biscoe, 12 Id., 95; Brooks vs. Hanauer, 22 Id., 176. • Nor could it ever be set aside by consent: Mayor vs. Bullock, 6 Ark., 282; McKnight vs. Strong, 25 Id., 212. 'After setting aside the judgment by default, the only right defendant had, on trial of the writ of inquiry for the assessment of damages, was to cross-examine the plaintiff's • witnesses, and doubtless introduce witnesses of hiS own to lessen the amount of damages: Thompson vs. Hairlip, 14 Ark., 220; but he was allowed to plead several pleas to the merits; •his was error, but the error was in favor of the appellant, and therefore he could not complain: Ashley Us. May, 5 Ark., 408; Swinney vs. State, 22 Id., 216. After appearing and having the default set aside, he could not plead that the court had no jurisdiction of his p erson: 1 Saunder's ,, P1. & Es., p. 1. The want of jurisdiction as to the person of the defendant is waived by an appearance: Rhode Island vs. Massachusetts, 12 Pet., 657; Carter vs. Bennett, 15 TIow., 354. HARRISON, J.—This was an dction of debt, for money loaned and money . had and , received, by Sarah- Clark against John Carnall, commenced in tile Sebastian Circuit Court, for the Fort Smith district, and, after the pleadings were made up, transferred by, change of venueto the Crawford Circuit Court. At the return term, judgment was taken against the defendant, but the same was, at the next term, before the dam-
27 Ark.l OF THE STATE OF-ARKANSAS. 503 TEnm, 1872.] Carnall v. Clark ex use Hershey. ages were assessed, set aside upon the application of the defendant, and he filed foufr pleas; nil debit, payment, the' statute of limitations and set off. At the instance of the plaintiff, the plea of the statute of limitations was struck from the record, and she filed two replications to the plea of set off, nil deb'it, and the statute of limitations, and upon the pleadings as thus stated, issues were formed. ■ Upon trial, the jury returned a verdict, in favor of the plaintiff, for one thousand 'dollars debt, and five hundred and -ninety dollars damages. The defendant moved for a new trial, which was refused, and he excepted and appealed. Whilst it may be an established rule of practice that ' a default will not be set aside to enable a defendant to plead the statute of limitations, it is also well settled, that it has no application when the default has been irregularly taken, ./ and especially, if without notice to the defendant of the pen-dency of the suit. No summons is found in the record, and the bill of exceptions shows that the default was set aside, because the same • was taken withmit notice to the defendant. It, however, appears, by the transcript, that the entry upon the record of the default showed service of process upon him, which according to the provisions of the Act of the General Assembly, of February 17, 1859, is sufficient ev;idence •of the fact; but the default being set aside, the entry thereof is .no. part of the record. The Court, therefore, erred in striking out the plea of the statute of limitations. The grounds, upon which the motion for- a new trial was made, were: First. That the court refused to allow the defendant to. produce proof of particulars of his plea of set off, -in respect to which his right of action had not accrued within three. years. Second. Misdirection of the jury, and Third. That the verdict was against the evidence.
04 CASES IN THE SUPREME COURT [27 Ark. Carnall v. Clark ex use Hershey. [DECEMBER We are unable to see that the court erred in refusing to' -permit the defendant to prove the matters Of his set off, not within the period of limitations. lTpon the issue made • upon -the replication of the statute of limitations to his plea of a :set off, the defendant undertook to show, affirmatively, that T his cause•of action did accrue within three years. "The obligation of proving any fact lies upon the party who substantially asserts the affirmative' . of the issue. 1 Green Ev. Sec. ,74 ; 2 Cromp & M., 658. The plaintiff, who only adduced any • -evidence, read to the jury the following instrument of -writing : "This agreement, on the part of the undersigned, with Miss _Sarah' Clark, of Fort Smith, Arkansas, is as follows, to-wit : I have this day, in order to raise money, sold and delivered' to •:said Miss Sarah, the following writing obligatory,. to-wit : dated January 9th, 1860, for $710 due at eighteen months, with ten per cent. from date, and signed by B. T. DuVal, • John King, W. B. Calhoun and S. Howard Calhoun ; an,d also, the following .note, to wit : dated January 23d, 1860, for 4828.29, due at twenty-four months, with interest at ten per • cent, froth., date, and signed by Benj. J. JackOway and Samuel M. Hays, payable to Samuel L. Griffith's order, and indorsed by him to me ; the first writing above being payable to me or -order, at and for the suni of $1000 'in cash, with the under-• standing, hOwever, that I am to be , permitted to redeem said. -. notes at any time within the ensuing twelve months by pay--ing the said sum of $1000, with interest at ten per cent, per annum from this date, or at ,any time within ' twenty-four months, unless said . ' Sarah Clark shall serve upon me a notice • in •writing, giving me six months notice, that unless I paid -said sum of $1000 and interest within said six months, she • conSider I have forfeited all right to redeem said note , and writing obligatory. Witness my hand and seal, this ad day of January, 1861. JOHN CARNALL, [Seal.]" She also read the following indorsement thereon.
, 27 Ark.] OF THE STATE OF ARKANSAS. 505. 1872.1 Carnall v. Clark ex use Hersh4. "The within note of $828.29; is this day given up to the. undersigned. January 23, 1862. • JOHN CARNALL." And the defendant being introduced by her, testified ; That,. on the 23d day Of January, 1862, Griffith' offered ' to pay him the note in Confederate money ; he went to plaintiff and tokt her that Griffith was ready to pay it ; she produced it and lianded it to hini and he took it to Griffith and got the money,. whereupOn, he returned to plaintiff, and offered to pay her,. without, however, telling her in what kind of money the $1000 and the interest ihich had accrued. She rePlied that she did not need it, and that he could keep and' use it ; that • his note, and Tuyal's and King's, were amply sufficient to-secure her, and she was satisfied with them. He thereulion. asked for the aireement, which being produced, he 'made the indorsement upon it, read to the jury. The instruction given _to . , the jury was as follows : "If the jury find from the evidence, that the defendant-borrowed from the plaintiff the sum of one thousand dollars., and, to secure the payment thereof, executed to her the instrument of writing read to them, they shall find for the plaintiff' the . sum of one, thousand dollars, for her debt, with Six per cent, interest from the 3d day of January, 1861." This instruction was predicated upon the hypothesis, that the money the defendant obtained from the plaintiff was borrowed, and the writing obligatory and note • were placed, in her hands simply as a security for its re-payment s ; but the. contract between the parties, as evidenced by the instrument read to the jury, admits of no such construction. The writing obligatory and note, were delivered to the plaintiff, . upon a. conditional sale; ih consideration of the money the defendant received ; not as a pledge or security for the re-payment of" the money. There was no promise or agreement on the part of the defendant to repay the money, and the relation of • debtor , and creditor did not exist between thein. . The property in them passed to the plaintiff; subject to be divested by
506 CASES IN THE'SUPREME COURT' [27 Ark. [DECEMBER the defendant within the tinie limited, by paying *the sum of ° money he received with the stipulated interest. If she had parted with them before the time in which he might have redeemed expired, his ohly' rethedy would, have been gia action for damages fOr her breach . of covenant, and not for their recovery. Porter vs. Clement, 3 Ark.,, 364; Johnson vs. Clark, 5 Arkansas, 321. . The instrUction was, therefore, errondOus and as it doubt. lessly influenced the ; verdict, which was not sustained 1:36r the evidence, the motion for a new trial should have prevailed. , . The judgment is therefore reversed, and the 'cause remanded with instructiOns to set aside the verdict, and reinstate upon the record . the plea of the statute of limitations, and proceed according to law.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.