{ "id": 1566895, "name": "Earl v. Ellison", "name_abbreviation": "Earl v. Ellison", "decision_date": "1919-03-10", "docket_number": "", "first_page": "166", "last_page": "171", "citations": [ { "type": "official", "cite": "138 Ark. 166" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "90 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "15 How. 160", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 3482015 ], "opinion_index": -1, "case_paths": [ "/us/56/0160-01" ] }, { "cite": "60 Ark. 250", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903724 ], "weight": 3, "pin_cites": [ { "page": "326" } ], "opinion_index": -1, "case_paths": [ "/ark/60/0250-01" ] }, { "cite": "1 Ark. 144", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728450 ], "opinion_index": -1, "case_paths": [ "/ark/1/0144-01" ] }, { "cite": "90 Ark. 158", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513824 ], "opinion_index": -1, "case_paths": [ "/ark/90/0158-01" ] }, { "cite": "32 Ark. 553", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877113 ], "opinion_index": -1, "case_paths": [ "/ark/32/0553-01" ] }, { "cite": "65 Ark. 215", "category": "reporters:state", "reporter": "Ark.", "weight": 2, "pin_cites": [ { "page": "231" } ], "opinion_index": -1 }, { "cite": "90 Ark. 161", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513808 ], "opinion_index": 0, "case_paths": [ "/ark/90/0161-01" ] }, { "cite": "89 Ark. 513", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515250 ], "opinion_index": 0, "case_paths": [ "/ark/89/0513-01" ] }, { "cite": "60 Ark. 394", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903703 ], "opinion_index": 0, "case_paths": [ "/ark/60/0394-01" ] }, { "cite": "119 Ark. 564", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "117 Ark. 77", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "91 Ark. 51", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "90 Ark. 484", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "88 Ark. 128", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "86 Ark. 130", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1521450 ], "opinion_index": 0, "case_paths": [ "/ark/86/0130-01" ] }, { "cite": "84 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "193 Fed. 69", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 44723 ], "opinion_index": 0, "case_paths": [ "/f/193/0069-01" ] }, { "cite": "145 U. S. 285", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3562259 ], "opinion_index": 0, "case_paths": [ "/us/145/0285-01" ] } ], "analysis": { "cardinality": 608, "char_count": 11181, "ocr_confidence": 0.521, "pagerank": { "raw": 6.360589685387118e-08, "percentile": 0.38989995169602554 }, "sha256": "84fbf7b640d6ec8788065a4dcb1eb1debe525a8b55d446fb98ec027435399b0e", "simhash": "1:83d6d96d6602e54c", "word_count": 1959 }, "last_updated": "2023-07-14T20:29:27.907161+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SMITH, J., concurring." ], "parties": [ "Earl v. Ellison." ], "opinions": [ { "text": "\"WOOD, J.,\n(after stating the facts). First. The court did not err in overruling the demurrer nor in overruling the motion to require the appellees to elect to dismiss the complaint as to all except one of the plaintiffs. Act 339 of the Acts of 1905, page 798, provides: \u201cWhen causes of action of a like nature or relative to the same question are pending before any of the circuit or chancery courts of this Stlate, the court may make such orders and rulings concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.\u201d\nThe several causes of action in the single complaint in separate counts, in which each plaintiff is named, grew out of precisely the same character of contract entered into on the same day for the purchase of the same kind of oats and at the same price. The only difference in the several contracts being in the amount of oatls purchased. While the difference in the quantity of oats purchased by each of the several plaintiffs and the difference in the loss of rent, time, and expense in preparing the soil and sowing the oats, necessarily caused a difference in the measure of damages for each of the several plaintiffs, nevertheless, there was such a similarity in the nature of the causes of action as to bring the several causes strictly within the provisions of the above statute.\nThe purpose of the statlute, as expressed therein, is \u201cfor avoiding unnecessary costs or delay in the administration of justice.\u201d It can readily be seen that the time of thg court would be greatly conserved and the expense of litigants and taxpayers would be considerably reduced by combining these several causes of action into one for the purpose of trial. The language, \u201cmay consolidate said causes when it appears reasonable to do so,\u201d shows that a broad discretion was intended to be conferred upon trial courts in applying the statute in order to effectuate ills advantageous purposes.\nOur statute for the consolidation of causes, supra, is almost a literal copy of section 921, R. S. (U. S. Comp. St. 1901, p. 685).\nIn Mutual Life Ins. Co. v. Hillman, 145 U. S. 285-293, there was a single plaintiff who brought a cause of action against several defendants, in which the defense t|o the cause of action was the same. The trial court consolidated the actions for trial \u201cbecause they appeared to the court to be of like nature and relative to the same quest\u00fcon, because it would avoid unnecessary costs and delay, and because it was reasonable to do so and was within the discretionary power of the court, under section 921 of the Revised Statutes.\u201d\nThe Supreme Court of the United States, in approving the order of consolidation for trial, said: \u201cThe learning and research of counsel have produced no instlance in this country, in which such an order, made in the exercise of the discretionary power of the court, unrestricted by statute, has been set aside on bill of exception or writ of error.\u201d\nThe same ruling would be applicable, of course, where there were several plaintiffs against one defendant. See Rose Mfg. Co. v. Whitehouse Mfg. Co. et al., 193 Fed. 69.\nIn evoking the sound discretion of the court, each case must depend largely upon its own peculiar circumstances to determine whether the discretion of the court has been reasonably exercised.\nIf separate suits had been brought by each of the appellees against the appellant, it is manifest that the court under the above statute would not have abused its discretion in ordering the suits consolidated for trial. Such being the case, it was not prejudicial error tlo refuse to require the appellees to elect to proceed separately in the trial of the cases. There was not enough difference in the testimony upon which each of the appellees relied to produce inextricable confusion, and, therefore, the court was justified in its ruling. See Waters Pierce Oil Co. v. Van Elderen, 84 Ark. 556; Mahoney v. Roberts. 86 Ark. 130; Ashford v. Richardson, 88 Ark. 128; St. L., I. M. & S. Ry. Co. v. Raines, 90 Ark. 484; American Ins. Co. v. Haynie, 91 Ark. 51; Fidelity Phoenix Fire Ins. Co. v. Freidman, 117 Ark. 77; The Beatrice Creamery Co. v. Garner, 119 Ark. 564.\nSecond. After the demurrer and the motion to elect were overruled, the appellant stood upon his pleadings and refused to plead further, and the court proceeded, thereupon, to render judgment for the several plaintiffs, appellees, in the amounts severally claimed by them in their complaint.\nOne of the grounds of the motion for new trial is, \u201cthat the court erred in rendering judgment againstl the defendant in this cause.\u201d\n\u201cAllegations of value or of amount of damage shall not be considered as true by the failure to controvert them.\u201d Sec. 6137, Kirby\u2019s Digest.\nThe court erred in rendering judgment in favor of the appellees on the allegations of their complaint as to the amount of damages, without proof as to the amount of such damages. Derrick v. Cole, 60 Ark. 394-399; Greer v. Newbill, 89 Ark. 513; Greer v. Strozier, 90 Ark. 161.\nFor the error indicated, the judgment is reversed and the cause is remanded for new trial.\nSMITH, J., concurring.", "type": "majority", "author": "\"WOOD, J.," } ], "attorneys": [ "Calvin Sellers and W. P. Strait, for appellant.", "Edward Gordon, for appellees." ], "corrections": "", "head_matter": "Earl v. Ellison.\nOpinion delivered March 10, 1919.\n1. Action\u2014misjoinder of causes.\u2014Where several parties joined as plaintiffs, but in separate counts, alleging that defendant at the same time, for the same price and under identical contracts, sold oats warranted to be Burt oats and to germinate, when they were not Burt oats and would not germinate, it was not error to overrule a demurrer for misjoinder and a motion to require plaintiffs to elect to dismiss as to all of the plaintiffs except one, since the court, under Acts 1905, p. 798, might have consolidated the actions if they had been brought separately.\n2. Pleading\u2014necessity of proof\u2014damages.\u2014In view of Kirby\u2019s Dig., \u00a7 6137, providing that \u201callegations of value or of amount of damage shall not be considered as true by the failure to controvert them,\u201d it was error to render judgment for plaintiffs in a suit for damages arising from the sales of worthless seed, on their verified allegations as to the amount of damages without proof thereof.\nAppeal from Conway Circuit Court; A. B. Priddy, Judge;\nreversed.\nSTATEMENT OE EAOTS.\nSeventeen parties, the appellees, as plaintiffs, instituted this action in the justice court against R. D. Earl, doing business under tlhe firm name of Earl Brothers & Company, the defendant.\nEach of the plaintiffs, in a separate count, set up that on or about the first day of February, 1917, he purchased from the defendant a certain quantity of Burt oats for seed. That he Hold the defendant that he wished the oats for seed; that the defendant \u201cfalsely and fraudulently stated to the plaintiff that he would guarantee said oats to be the genuine Burtl oats and that they would germinate. That plaintiff, relying upon said guaranty, purchased said oats and planted same, but they would not germinate and were entirely worthless and were not the genuine Burt oats; that) said representationso were false and untrue.\u201d Each of the plaintiffs, in each of the separate counts, designated the number of bushels of oats purchased by him and the amount of damages he had sustained, by reason of the alleged false representation, on account of the worthless oats, and also the amount of damages he had sustained in loss of rent, time and expense in preparing the soil and sowing the oats; and prayed judgment for damages. All of the plaintiffs joined in a prayer for judgment for damages for the aggregate amount of the sums paid by each of them for the oats and also for the aggregate amount! of the damages sustained by them for the loss of time, and expense in preparing the soil and planting the oats, and in the loss of rent.\nThe case was appealed to the circuit court. The defendant filed a special demurrer in which he set up that there was a misjoinder of parties plaintiff and a misjoinder of causes of action, and that the court was, therefore, without jurisdiction. The demurrer was overruled. The defendant then filed a motion to require the plaintiffs t|o elect as to each cause of action and as to which plaintiff should prosecute the suit, and that the cause of action as to all other plaintiffs be dismissed. The motion was overruled. The defendant elected to stand upon his demurrer and motion, and refused to plead further.\n\u2018 \u2018 Thereupon, \u2019 \u2019 as the record recites, \u2018 \u2018 this cause coming on to be heard, same was submitted to the court upon the complaint of the plaintiffs, which was sworn to and verified by the plaintiffs, and the court being well and sufficiently advised, doth find that] the plaintiff, Ruff Ellison, is entitled to judgment against the defendant in the sum of $36.80.\u201d\nThen follows consecutively a recital naming each of the other plaintiffs, and the amount of the judgment t|o which he was entitled, and a judgment in his favor for that sum. The recital concludes, \u201cit is further ordered and adjudged that each of the above named plaintiffs have and recover of and from the defendants all 'their costs in this suit, laid out or expended, for which let execution issue.\u201d\nThe appellant duly excepted to the ruling of the court in overruling his demurrer to the complaint and his motion requiring the plaintiffs to electl and in rendering judgment against him, and from the judgment rendered prosecutes this appeal.\nCalvin Sellers and W. P. Strait, for appellant.\n1. The court erred in overruling the demurrer and the motion to require plaintiffs to elect. Plaintiffs were separate and distinct customers and each bought oats for planting purposes, and each was in no way interested in the other\u2019s purchase. There was clearly a misjoinder of separate parties and causes of action. Kirby\u2019s Digest, \u00a7 \u00a7 6079-80-81-83, under our stlatute there could be no consolidation of these separate suits between different parties and for separate causes of action. 65 Ark. 215; 80 Id. 231; 74 Id. 54; 90 Id. 482; 5 Id. 651.\n2. It Was error to render judgment without hearihg proof on the intervention of a jury. Art. 2, \u00a7 7, Const.; 32 Ark. 553; 56 Id. 391; 48 Id. 426; 57 Id. 583; 109 Id. 534.\n2. Allegations of value or the amount of damages must be proven before a jury. 90 Ark. 158; 1 Ark. 144; 4 Id. 534, 574; 12 Id. 599; 5 Id. 640; 10 Id. 258; 29 Id. 373; 39 Id. 491; Kirby\u2019s Digest, \u00a7 \u00a7 6137, 6240. It was at least the duty of the court to hear proof, supra.\nEdward Gordon, for appellees.\n1. There is no error. The questions argued by appellant were not raised in the court below and no objections were made below. The rulings of the court were notl objected to, nor saved in the motion for new trial nor shown by a bill of exceptions, and all objections, are thereby waived. 60 Ark. 250. See also 73 Id. 407 ; 85 Id. 326; lb. 488; 91 Id. 43, 47; 108 Id. 224-6; 60 Id. 257; 15 How. 160'.\n2. There was no misjoinder of parties. Kirby & Castle\u2019s Digest, \u00a7 7254; Acts 1905, 798; 90 Ark. 483; 83 Id. 288; lb. 255; 88 Id. 128. See also 84 Id. 556; 91 Id. 51; 86 Id. 130; 83 Id. 372; 117 Id. 71; 119 Id. 558." }, "file_name": "0166-01", "first_page_order": 192, "last_page_order": 197 }