Slark, Stauffer & Co. v. Van Gilder, 27 Ark. 58 (1871)

Dec. 1871 · Arkansas Supreme Court

27 Ark. 58

SLARK, STAUFFER & CO. v. VAN GILDER.

Appeals — Trials, de novo. — Oases, on appeal, from tlio Probate to the Circuit Courts, should be tried do novo, even though no motion bo made for that purpose.

APPEAL PROM ASHLEY CIRCUIT COURT.

I Ton. Henry B. Morse, Circuit Judge.

Watkins & Rose, for Appellants.

J. W. Van Gilder, for Appellee.

Searle. J.

This suit was first instituted and tried in the Probate Court of Ashley county. From the judgment of that court, the appellant*- appealed to the Circuit Court. In the Circuit Court, they moved for a trial de novo, which was overruled, and to which they excepted. Thereupon, the Circuit Court having examined the transcript, from the Probate Court, found no erf or therein, and affirmed the judgment of «the Probate Court. On account of this, as well as other" rulings, the appellants appealed to this court.

The Circuit Court committed error in not trying this case de novo. Smith & Bro. vs. Van Gilder, 26 Ark.

The provisions of the law seem to be mandatory, and cases of this description should be tried anew, even though no motion be made for that purpose:

For the error, above indicated, the judgment of the Circuit Court is reversed, and the cause remanded to be proceeded in .according to law, and not inconsistent with this opinion.