Belding v. Sloan, 65 Ark. 175 (1898)

March 26, 1898 · Arkansas Supreme Court

65 Ark. 175

Belding v. Sloan.

Opinion delivered March 26, 1898.

Common Pleas Court — Practice on Change cf Venue. — Under Acts 1875, p. 123, ? 22, permitting actions pending before justices of the peace to be changed to the court of common pleas in certain counties, it was provided that, upon a change of venue being taken, ‘ ‘neither party shall be permitted to file in said court any new or additional cause or any new or additional counter-claim or set-off, * * * but said cause shall be tried upon its merits as though still in the justice’s court.” Bold that the defendant could not file in the court of common pleas, nor in the circuit court on appeal, a set-off or counter-claim which he had not filed nor offered to file in the justice’s court. (Page 176.)

Appeal from Garland Circuit Court.

Alexander M. Dueeie, Judge.

STATEMENT BY THE COURT.

The appellee, Sloan, brought an action upon an account against appellant, Belding, before a justice of the peace of Garland county. Upon the day set for trial the parties appeared, and, on motion of Belding, “a change of venue” was taken to the court of common pleas of said county. When the case was called for trial in that court, Belding offered to file a set-off and also a counter-claim against the plaintiff, Sloan, but the court refused to permit him to do so. On the appeal to the circuit court, Belding again offered to file his set off and counter-claim, but the court refused his request, on the ground that he should have filed them before the justice of the peace. Upon a trial there was a finding and judgment against Belding, from which judgment he appealed.

Greaves & Martin, for appellant.

The act.of the legislature establishing the court of common pleas in Garland county prohibits the filing of any “new” or “additional” defense in the court of common pleas, on a change of venue from justice court. This, however, does not apply to a case where no defense or counter-claim was filed in justice court. In such ease, the defendant is at liberty to file his counter-claim in the common pleas court. Acts of 1875, p. 123, §§ 21, 22, 18 and 4. For proper definition and construction of “new” and “additional,” see Century Diet. “New,” (5), (11), and (22); Rapalje & Lawrence’s Law Diet. “New and Improved;” Anderson’s Diet, of Law, “New;” 16 Am. & Eng. Enc. Law, 489; 1 ib. (2 Ed.) 608; Cent. Diet.; Rap. & Lawr. Law Diet., Anderson’s Diet. Law, words, “Addition” and “Additional.’ This court has construed a statute similar to the one at bar, in the manner for which we contend here. Sand. & H. Dig., § 4447; 35 Ark. 448; 44 Ark. 376; 46 Ark. 259; Sand. & H. Dig., § 1124; 48 Ark. 349; 64 Ark. 395.

Wood & Henderson, for appellee.

The defendant failed to file his counter-claim in the justice court, and it cannot be filed in the court of common pleas. Acts 1875, p. 127, §§ 18, 20 and 22; 35 Ark. 448; 44 Ark. 376; 46 Ark. 259; 48 Ark. 349.

Riddick, J.,

(after stating the facts). We are of the opinion that the judgment of the circuit court should be affirmed. The statute of 1875, which permits actions pending-before justices of the peace to be changed to the courts of common pleas in certain counties named in the act, contains this provision: “Upon a change of venue being taken as provided in the preceding section, neither party shall be permitted to file in said court any new or additional cause, or any new or additional counter-claim or set-off; nor shall either party be required to file any additional pleading, but said cause shall be tried upon its merits as though still in the justice’s court.” Acts 1875, p. 123, § 22. Under this statute, we think the circuit court properly ruled that Belding could not file in the court of common pleas a set off or counter-claim which he had not filed or offered to file before the justice of the peace.

Affirmed.