304 CASES IN THE SUPREME COURT Frank et al. vs. Hedrick. [January FRANK ET AL. VS. REDERICK. The cause of McGuire vs. Cook:, 13 Ark. R. 448, as modified by Bradley vs. Hume, ante p: -, as to the allegations of the declaration in an action of unlawful detainer, approved. There can be no doubt that the pleas copied in the transcript, were legally filed in the Court below, where the clerk certified that they were "filed in open Court, Oct. 9, 1855," and the record entry, of the same date, states that the defendant, by attorney, filed his two pleas, No. 1 and 2." Ordinarily, it is irregular in practice to interpose a demurrer to the declaration after pleas in bar have been filed But such irregularity will not avail the plaintiff, when the defect in his declaration is not only a substantial one, but of such a character that advantage might be taken of it, as well upon a motion in arrest, or writ of error, as upon demurrer. ppeal from Ch icot Clirci4t Own t. The Hon. THEODORTC F. Sontluti,s, Circuit Judge. Fowler & Stillwell for the appellants Cummins & Garland for the appellees, Mr: Instice firmly delivered the opinion of the Court. The appellants brmight unlawful detained in the Chicot Circuit Court, alleging in their complaint or declaratoin, that, on the 9th of August, A D 1 8 5 5, the appellants were entitled to the possession of a certain tract of land and premises, situated in the county of Chicot, by virtue of a deed from Messrs. S. 0: Nelson & Co,, dated 20th June, 1955, and duly recorded in the Recorder's office of said county: and that the appellants bein9; so entitled to the possession thereof, on the 10th August 1855, at the county of Cliieot, demanded possession of the same by notice in writing ( as it was alleged ) according to the statute in
oF TUE STATE OF ARKANSAS. 305 Terra, 1857] Frank et al. vs. Hedrick. such case made and provided, but the said appellee, although so requested to quit his: possession, wholly refused to quit such possession, and delivET the same to the appellants, and nas from thence contmned unlawfully and forcibly to detain and hold the said land and promises from the appellants, etc. On the filing of the complaint with the affidavit and bond prescribed by the statutc„ the clerk issued the approprlatc writ, rpturnahle to the second Monday in October, A. D. 1855, that being the day on which the next term of the Chicot Circuit Court was holden, after the commencement of the suit. It appears front the transcript that on_ the 9th October, P355, the appellee, by attorney, appeared and filed his two pleas, described as No's 1 and 2, and from the record, in which they are copied, are evidently the general issue, and the statute of limitations setting lip three years as a bar. As there is a troversy between counsel in respect to the fact, whether or not these pleas were really filed in legal contemplation, we give the entries, or memoranda on the record, in respect to the subject, as follows: It is certified by the clerk, that tln Ise pleas -well endorsed thus: "filed in open Court, Oct. 9th, 1S5.5. - and again. in that part of the r000rd in which they are copied: immediately preceeding the copies, there is the following entry or memorandum, to wit: "and afterwards, to wit, on the 9th day of Octo-ber, 1855, the defendant by attorney, filed his i deas, No's 1 and 2, etc." It appears also from the transcript, that on the same Ilay flit above pleas were filed, as above shown, the appellee interposed a demurrer to the 1 .1-Implil int ir declaration of appellants, set tmg out sundry causes. 4 In the same flay the demurrer was filed, it Avtu; acted upon by the I 3-cart , and j udgmeut reticle-red thereon in favor of the appellee, and that appellants answer over, which, it seems they declined to do, but rested upon their declaration. Tudg r tnent final was rendered for the app■llee,— that the appellants take nothing by their suit, that the appellee has restitution of the lands and premises sued for, arid recovir his costs, etc.
306 CASES IN TILE scrruEiIE COUIZT Frank et al V9 Hedrick [January The appellants appealed, upon which ti ft CAA IIS1' IS 110W p p nd-ing in this Court. The appellants assig-n for error the following', to wit lst. That the Court below sustained the demurrer Of the ap-pell ee to the appellant's declaration 2d. General assignment_ We will proceed to consider and determine the assignments 111 the order in which they occur: 1 st Did the Court err in sustaining the dentarpsr of the ee to the declaration of the appellants? We think this question has been put completely to rest by this Court, III Me-Cuire vs: Cook, 143 Arlc T. 448, et sec' , ) for it will be observed that the declaration fails or omits to ;Iver that S. O. Nelson & Co from whom it is alleged the appellants purchased the pron s es in question, had ever had possession of them jiiior to the exeention of the deed from them to the appellants and more than this, there is no aviTment in the declaration to the effect. that the appellants themsdves ever had actual or constructive possession of the prrmises, or that the appellee was lessee or tenant either of S. Ci. Nelson Co , before their sale to appellants, ( f ir of the appellants since they became the owners of the land and premises ni controversy: As we have lust declared in Bradley vs. Hume, that "so much of the opinion of this Com t in Neffilll'e vs, Cool as declares 111, action in 11111'st ( mil awful detainer) to he merelâ– possi ssotv, and that as a gcneral rulc, thc pldintiff unist have been possessed of the premises to entitle him to maintain this form of remedy; and that fie c;111- not recover upon mere constructive possession arising from his title; and that the action was not designed to be concurrent, in all eases, with eicettnent, is frilly approved and confirmed. Ent as much of that opinion as may seem to decide that the plaintiff can in no case sustain the action unless he hns been himself actually in poss,ssion of the land we do not approve," so we reiterate and a g ain affirm here. The declaration in the ease nt bar, unlike the ono in Bindley vs Mime_ is totally and utterly deficicnt in omitting to aver the existence of the relation of landlord and tenant, actual or constructive between the appel-
OF THE STATE OF ARKANSAS: 307 Term,1857] Frank et al. vs. Hedrick. lants and appellee, so as to constitute the holding CIVe y after demand, unlawful and wrongful on the part of the appellee, in the purview of the act under which the proceeding is warranted and had. We are therefore forced to the conclusion from thc tenor and letter of the act in question, as well as upon the authority of the eases above referred to, that the Court below did not err in sustaining the deroverror to the declaration in this cause. But it is insisted upon the part of the appellants, that the ill — miirrer interposed to the declaration, -which we have just considered, was -waived on the part of the appellee by the interpo-istion of his two pleas in bar filed on the same day. Without en/icor -ling this fact, it is maintained on the part of the appellee, that the recnrd dot's not show that any pleas were really filed by him in the Court below, except so far as the filing order endorsed on the pleas copied in the transcript may indicate, insisi-ing, as he does, that the mere endorsement of the filing on a plea by the cleik, does not, in legal parlance, constitute the plea "filed." There can be no doubt of the fact "that every declaration, statement or other pleading shall he signed by the party hlmg the some, or his attorney: and the clerk shall rndoisr thereon the day on which it was filed, and if filed in term time, shall make an entry theTeof nu this nrrantes_" See Dig. ell. 126, sec. 5, p. 804. Davis vs. l iebson, 2 Ark R 1_17 Cole Stephens vs. Wagner ad 154. Iiittlewell et el. vs. Scalk 2 Ark, R: 474. Duke et at vs. Crabtree, 5 Ar17. R. 47S. ' On examination of the transcript we think there can bc no doubt of the fact, that on fhe same day, arid ( the ti anseript showq -from their positions before the di murrer was -filed, the appellee filed Ins two pleas, Nose 1 rend 2, as the entry expresses it; and the 1-ileas themselves transcribed, manifestly give evidence of their character and purport; thus fulfilling the vei l), ire-ments of the statute in this respect, declared, as it has been lc, the adjudicatilons of this Conit to which we have above referred, to les substantial -requirement, and not one merely directory which may Le omitted according to the i , aprice or I li, , ,eiction of the clerk without projnilice to the parties.
308 OASES IN THE SUPREME COURT Frank et al, vs: Hedrick: [January Conceding Idle grietion us to the filing of the pleas to be settled in accordance with the views already expressed on the subject—what effect do they have ripon the q leinurrer of the ap-pellee to the appellant's declaration? Ordinarily it is irregular, in practice, to interpose a demur-rer to the declaration, after pleas in bar Lave butll filed, or as it is better expressed, " a defect in pleading is added if the advers,. party plead o\er to, or answer the defective pleading in such a manner that an Omission or informality therein is expressly or implied1y supplied , or rendered formal or intelligible:" See 1 Chitty's Plead. 1171, Mellaugfilin vs: lintellins, Ark. R. 211: Woods, exparte, Tb5t2 Tim -with regard ti a defect in substance, it seems thut it earl-III it be impliedly cured by the mere effect of pleading Oy er thereto, As for instance, if th lfi nu1aiit plead accord, and do not show satisfaction, and the replication merely deny the agreement, this tra eeisii cannot cure the fault in the plea, namely, the omission to show a satisfaction to the plaintiff in regard to the cause of action If, however, the adverse pleading expressly admit the fact, which oiwlit to have lr in stated in the defective plendure . ., and which is substantially incorrect in ennittirm it, the error becomes, it is said, immaterial: See 1 Chitty's Plead, 672 et seqr. A pleading setting fen tb a good title defectively, will he cured by pleading over other matter, hut a pleading setting up no title whatever, and showing no cause ot action or ground of defence in the pleader, will not la2 cured by pleading over other -matter. See Spear vs ThacEnell, 5' Mass. R.; Robbins vs. Tuee, 1 same 4T0. Applying tla so rules to the ease letote us, we are irresistibly forced to the conclusion, that the g cneral rule, which we have laid (Town in iespect to the effect of pleading over after demur--1o, does not apply here, for the reason, that the defect existirez in the declaratio ndemurred to, was not only a substantial one, hut of such a character as to render the declaration utterly and thoroughly defective for the reasons which we have before herein xpressed, when treating of the demurrer. We therefore
DV THE STATE OF ARKANSAS 309 Term, 1E457] hold that the (Hirt below did right, when it disregarded the two pleas of the appellee and proceeded to consider and adjudicate the demurrer; for to hold otherwise in the case, would be, in effect, to require the Court to proceed to do that which would eventually result, as the cause has alleady done upon de-murrer; for the defect in the declaration is of such a:character that advantage might be taken of it, as well upon a motion in arrest and writ of orror as lipnri a demurrer Entertaining the views that we do, upon the whole rpoord, we hold that there is no error in the jndgnient of flip Chieot Circuit Court in this cause, and we therefore accordingly affirm the indgment.
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