{ "id": 1594431, "name": "Johnson v. Ditlinger", "name_abbreviation": "Johnson v. Ditlinger", "decision_date": "1919-11-17", "docket_number": "", "first_page": "509", "last_page": "512", "citations": [ { "type": "official", "cite": "140 Ark. 509" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "101 Ark. 404", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1310970 ], "opinion_index": -1, "case_paths": [ "/ark/101/0404-01" ] }, { "cite": "120 Ark. 499", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1561088 ], "opinion_index": -1, "case_paths": [ "/ark/120/0499-01" ] }, { "cite": "51 Ark. 441", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723845 ], "opinion_index": -1, "case_paths": [ "/ark/51/0441-01" ] }, { "cite": "124 Ark. 388", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1555027 ], "opinion_index": -1, "case_paths": [ "/ark/124/0388-01" ] }, { "cite": "94 Ark. 115", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545460 ], "pin_cites": [ { "page": "124" } ], "opinion_index": -1, "case_paths": [ "/ark/94/0115-01" ] }, { "cite": "112 S. W. 881", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "87 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1519099 ], "opinion_index": -1, "case_paths": [ "/ark/87/0313-01" ] }, { "cite": "90 S. W. 17", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "76 Ark. 599", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501003 ], "opinion_index": -1, "case_paths": [ "/ark/76/0599-01" ] }, { "cite": "37 Kan. 235", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1071735 ], "opinion_index": -1, "case_paths": [ "/kan/37/0235-01" ] }, { "cite": "110 Ark. 578", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337144 ], "opinion_index": 0, "case_paths": [ "/ark/110/0578-01" ] }, { "cite": "58 Ark. 138", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 } ], "analysis": { "cardinality": 388, "char_count": 7244, "ocr_confidence": 0.503, "pagerank": { "raw": 4.889554353547714e-08, "percentile": 0.30671421384026637 }, "sha256": "784251ec12d9ab1d9c187bda56f1175075a5991bb3a838b4b7dd0cf62de58023", "simhash": "1:e5bf86f3739bd2e6", "word_count": 1233 }, "last_updated": "2023-07-14T17:17:16.496432+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Johnson v. Ditlinger." ], "opinions": [ { "text": "WOOD, J.\nThis action was instituted by the appellees against the appellants in a justice court. The appellees alleged in their complaint, as follows:\n\u201cThat on or about the.................day of.........................., 1915, the defendant, Jo Johnson, collected the sum of $70, witness fees and mileage in the case of Sadie Miller v. St. L., I. M. & S. Ry. Co., without the authority of these plaintiffs and unlawfully and wrongfully withholds same from the plaintiffs, although demand has been made for the same.\n\u201cWherefore, plaintiffs pray judgment against defendant for the sum of $70 and all of their costs herein laid out and expended. \u2019 \u2019\nJudgment was rendered against the appellant in the sum of of $70. Appellant took an appeal to the circuit court where judgment was again rendered against him by default. An execution was issued on the judgment of the circuit court.\nAppellant filed a petition in the circuit court in which he set up the proceedings had before the justice and circuit courts resulting in the judgment rendered against him which he alleged was void for want of jurisdiction in the justice of the peace over subject-matter of the action. He prayed to have the execution quashed and the judgment vacated.\nThe allegations of the petition were denied by the appellee.\nThe court after hearing the testimony on the issue raised by the petition and answer thereto entered a judgment dismissing the petition, from which is this appeal.\nThe only question is whether or not the justice of the peace had jurisdiction of the subject-matter of the action.\nThe complaint filed before the justice plainly shows .a misjoinder of the parties plaintiff and of causes of action because the witness fees alleged to have been collected by Johnson were not the joint property of the plaintiffs, but each was entitled only to his or her own fees and neither was entitled to the aggregate amount. Therefore, the cause of action, if any, was separate and not joint. But objections as to misjoinder of causes of action could and should have been raised in the court where the action was instituted.\nA defect as to parties plaintiff or as to the allegations of the complaint showing a misjoinder of a cause of action did not affect the jurisdiction of the justice over the subject-matter.\nThe appellant contends that the complaint stated a cause of action ex clelicto and that therefore the justice had no jurisdiction. \u2019\nIn Fordyce v. Nix, 58 Ark. 138, we said: \u201cUnder the reform procedure, courts regard the substance rather than the form. \u201d \u201c The character of the action must be determined by the nature of the grievance rather than by the form of the declaration.\u201d\nNow the allegations of the complaint although inartistically drawn and technically defective, nevertheless, stated a cause of action for money had and received. Whatever defects there were might have been cured by motion to make the same more specific, or by amendment if the complaint had been demurred to.\nAn action for money had and received lies where the defendant, not being the mere servant or agent of the plaintiff, has received actual money belonging to the plaintiff. \u201cThere need be no privity of contract except that which results of one man having another\u2019s money which he has not a right conscientiously to retain. \u2019 \u2019 2nd Chitty on Pleading, 29-31.\n\u201cWhere one has obtained money by deceit or fraudulent practices the loser may bring his action for the tort analogous to the action on the case or may sue upon an implied contract for money had and received. \u2019 \u2019 Bliss on Code Pleading, section 15, and notes.\n\u201cWhere one has in his possession money which belongs to another the law implies a contract that he will pay it over to the rightful owner on demand.\u201d Ark. Nat. Bank v. Martin, 110 Ark. 578, syllabus one.\nAccording to the above authorities the complaint although defective states a cause of action for money had and received. The justice, therefore, had jurisdiction and the judgment of the circuit court dismissing appellant\u2019s petition is correct.\nJudgment affirmed.", "type": "majority", "author": "WOOD, J." } ], "attorneys": [ "Allyn'Smith, for appellant.", "Geo. W. Johnson, for appellees." ], "corrections": "", "head_matter": "Johnson v. Ditlinger.\nOpinion delivered November 17, 1919.\n1. Pleadings and practice \u2014 misjoinder\u2014must be pleaded, where. \u2014An objection to tbe misjoinder of causes of action must be made in the court where the action was instituted.\n2. Parties \u2014 defect\u2014misjoinder\u2014jurisdiction of justice. \u2014 A defect as to parties plaintiff or as to the allegations of the complaint showing a misjoinder of' a cause of action does not affect the jurisdiction of the justice over the subject-matter.\n3. Money had and received \u2014 action for lies, when. \u2014 An action for money had and received lies when the defendant, not being the mere servant or agent of the plaintiff, has received actual money belonging to the plaintiff.\n.4. Same \u2014 statement of a cause of action. \u2014 A complaint states a cause of action for money had and received, which states that the defendant collected a certain sum, witness fees and mileage in a certain case, without the authority of the plaintiffs, and unlawfully and wrongfully withholds same from the plaintiffs, although demand has been made therefor.\nAppeal from Sebastian Circuit Court, Greenwood District; Paul Little, Judge;\naffirmed.\nAllyn'Smith, for appellant.\n1. Tbe judgment was void for want of jurisdiction and tbe execution should be quashed and tbe judgment vacated.* Tbe complaint does not state a cause of action over wbicb tbe justice of tbe peace bad jurisdiction. Const., art. 7, sec. 40. The Constitution confers no jurisdiction on justices of tbe peace in matters ex delicto but only ex contractu. Jo Johnson was liable, if at all, for a tort. Tbe fees here belonged to tbe plaintiff in tbe case and not to-tbe witnesses. 37 Kan. 235. Johnson was not liable to tbe Ditlingers and Johnson was not liable. 76 Ark. 599; 90 S. W. 17; 87 Ark. 313.\n2. Tbe judgment of tbe justice of tbe peace was absolutely void, as no cause*of action was stated. 87' Ark. 313; 112 S. W. 881-2. The justice having no jurisdiction, tbe circuit court bad none on appeal. Ib.\n3. There was a misjoinder of plaintiffs. K. & C. Digest, \u00a7 \u00a7 3437, 7443. If tbe fees were Mrs. Ditlinger\u2019s, they were hers; if they were Pete Ditlinger\u2019s they were his .and a separate action must be brought. There was no joint action. Kirby & Castle\u2019s Digest, \u00a7 \u00a7 3447, 7443-5. The rights of the parties, Pete Ditlinger and wife, were separate and they could not be united in one suit, and there was a misjoinder, and the court had no jurisdiction and the suit should be dismissed.\n4. The complaint does not state facts to constitute a cause of action .and is a nullity.\nGeo. W. Johnson, for appellees.\n1. The bill of exceptions does not contain all the evidence. 94 Ark. 115, 124. The judgment is presumed to be correct. 124 Ark. 388. The court had jurisdiction of the parties and the subject-matter. The misjoinder of parties can not be raised here for the first time. 51 Ark. 441; 70 Id. 197; 50 Id. 97. It is not the duty of this court to search for errors; appellant must show that the judgment is wrong. 120 Ark. 499.\n2. APP\u00ae^11! has abstracted his petition to quash, the response thereto, the execution, the judgment nor the testimony, and all defenses are waived. 101 Ark. 404 and cases supra." }, "file_name": "0509-01", "first_page_order": 535, "last_page_order": 538 }