{ "id": 1366094, "name": "Foster-Holcomb Investment Company v. Little Rook Publishing Company", "name_abbreviation": "Foster-Holcomb Investment Co. v. Little Rook Publishing Co.", "decision_date": "1922-01-23", "docket_number": "", "first_page": "449", "last_page": "453", "citations": [ { "type": "official", "cite": "151 Ark. 449" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "94 Ark. 347", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545418 ], "opinion_index": -1, "case_paths": [ "/ark/94/0347-01" ] }, { "cite": "78 Ark. 350", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "85 Ark. 223", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1523294 ], "opinion_index": -1, "case_paths": [ "/ark/85/0223-01" ] }, { "cite": "104 Ark. 459", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350628 ], "opinion_index": -1, "case_paths": [ "/ark/104/0459-01" ] }, { "cite": "99 Ark. 218", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1314408 ], "opinion_index": -1, "case_paths": [ "/ark/99/0218-01" ] }, { "cite": "94 Ark. 572", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545353 ], "opinion_index": -1, "case_paths": [ "/ark/94/0572-01" ] }, { "cite": "91 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511810 ], "opinion_index": -1, "case_paths": [ "/ark/91/0400-01" ] }, { "cite": "63 N. W. 506", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "34 S. W. 381", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "95 Tenn. 612", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8537024 ], "opinion_index": -1, "case_paths": [ "/tenn/95/0612-01" ] }, { "cite": "65 N. 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Dec. 51", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "91 Ark. 367", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1511823 ], "opinion_index": 0, "case_paths": [ "/ark/91/0367-01" ] }, { "cite": "94 Ark. 345", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545445 ], "opinion_index": 0, "case_paths": [ "/ark/94/0345-01" ] }, { "cite": "103 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1352015 ], "opinion_index": 0, "case_paths": [ "/ark/103/0079-01" ] }, { "cite": "104 Ark. 276", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1350580 ], "opinion_index": 0, "case_paths": [ "/ark/104/0276-01" ] }, { "cite": "109 Ark, 206", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1341196 ], "opinion_index": 0, "case_paths": [ "/ark/109/0206-01" ] } ], "analysis": { "cardinality": 462, "char_count": 8038, "ocr_confidence": 0.457, "pagerank": { "raw": 3.6633481171313706e-07, "percentile": 0.8906277933578367 }, "sha256": "bcc835125350ca8344904d6c4436d590c20c6f8fa06c44c4ae72a17583e7ee8e", "simhash": "1:0a1edde1a55c582c", "word_count": 1384 }, "last_updated": "2023-07-14T19:18:51.844541+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Foster-Holcomb Investment Company v. Little Rook Publishing Company." ], "opinions": [ { "text": "Smith J.\nThis suit originated in the court of a justice of the peace in Hot Spring County by the filing of a complaint which alleged that \u201cthe plaintiff alleges that the Arkansas Democrat is a corporation engaged in printing and publishing a newspaper at Little Rock in the State of Arkansas, and is doing business under the laws of said State. \u2019 \u2019 It was further alleged that the defendant, a co-partnership composed of J. B. Foster and Blaine Holcomb, was indebted to the plaintiff in the sum of $50, as shown by an account attached to the complaint and marked Exhibit \u201cA\u201d and made a part thereof. The exhibit reads as follows:\n\u201cLittle Rock, Ark., October 11, 1919.\n\u2018 \u2018 Foster-Holcomb Investment C\u00f3.\n\u201cTo Little Rock Publishing Co., Publishers Arkansas Democrat, Dr.\n\u201cTo balance as per statement rendered for advertising during Oct. 16, 1916, to publishing advertisement in Arkansas on Wheels edition,......$50.00. \u2019 \u2019\nSummons was issued October 14, 1919, which was two days before the cause of action would have been barred by the statute of limitations.\nThere was a judgment in the justice court for the plaintiff, and the defendant has appealed.\nOn July 19, 1920, the defendant filed in the circuit court a plea in abatement and a motion to dismiss the action because the name, \u201cArkansas Democrat,\u201d was not a name under which a suit could be prosecuted. On the same day the Arkansas Democrat filed an amendment; to the complaint, alleging that it was a newspaper owned and controlled by the Little Rock Publishing Company, a corporation, and the name of that corporation was substituted as plaintiff. Thereupon the defendant filed a motion to strike oiit the amendment to the complaint, because the three-years statute of limitations had run, and because the amount sued for was not within the original jurisdiction of the circuit court. This motion was overruled, as was also a demurrer to the jurisdiction of the circuit court.\nThere was a trial and verdict for the amount sued for, and judgment was rendered thereon, from which is this appeal.\nThe plaintiff\u2019s case was made by the deposition of one J. F. Keeley, who testified that the sum sued for was due for advertising in a special issue of the Arkansas Democrat, a daily newspaper published in the city of Little Rock, and that \u201cevery condition and promise was lived up to in every way\u201d by the publishing company. It was objected that this was secondary evidence, and should have been excluded as such. We do not think the objection is well taken. It is true the witness did not produce a copy of the paper containing the advertisement, but there could be no objection to the witness stating that the advertisement was published, if the witness knew thai such was the fact.\nWe think the court properly permitted the amendment to the complaint. Our statute on amendments is very broad, and has been given a very liberal construction by the courts to effectuate its. manifest purpose, that is, that litigation may be tried upon its merits. This statute is as follows: \u201cThe court may, at any time, in furtherance of justice, and on such terms as may b<* proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to tin-case; or, when the amendment does not. change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.\u201d \u2022 Crawford & Moses\u2019 Digest, \u00a7 1239.\nAmong numerous other cases construing this statute is the case of Midland Valley Rd. Co. v. Ennis, 109 Ark, 206, where we said: \u201cUnder this section the court may, in its discretion, before the commencement of the trial, allow a complaint to be amended so as to chang-e the cause of action to another one which might have been joined in the same action; and at any time during the progress of the trial may permit an amendment which does not change substantially the claim, so as to conform to the facts proved. The only limitation in the statute is that, after the proof is introduced, the pleadings can not be amended so as to substantially change the cause of action. \u2019 \u2019\nSee also, American Bonding Co. v. Morris, 104 Ark. 276: Oak Leaf Mill Co. v. Cooper, 103 Ark. 79; Coleman v. Bercher, 94 Ark. 345; Bloom v. Home Ins. Co., 91 Ark. 367; Parry v. Woodson, 84 Am. Dec. 51.\nAppellants cite and reply upon the case of Curators of Central College v. Bird, 148 Ark. 323. There suit was commenced by \u2018 \u2018 Curators of Central College. \u2019 \u2019 It was objected that the suit was not brought by any proper party. The names of the curators were not set out, nor was there any showing that the plaintiff was a corporation. We there said: \u201cIt g-oes wi'hout saying that suits must be instituted or defended by persons either natural or artificial. \u2018Curators of Central College\u2019 is not a designation or description of any person either natural or artificial. There being no party plaintiff or appellant, there is. no cause of action or appeal therefrom pending in this court.\u201d\nBut here there was a showing that the plaintiff was a corporation. The complaint filed in the justice court alleged that the Arkansas Democrat was a corporation. Tins allegation was erroneous in that the name \u201cArkansas Democrat,\u201d was not the name of the corporation, but was the name of the newspaper published by the corporation ; and the court was warranted in permitting this error to be corrected, as it worked no change in the cause of action sued on.\nIt follows, therefore, that the making of this amendment was not the institution of a new suit, and appellant\u2019s pleas, that the cause of action was barred, and that the cause of action was not within the jurisdiction of the circuit court, were properly overruled. Judgment affirmed.", "type": "majority", "author": "Smith J." } ], "attorneys": [ "Wm. R. Duffle, for appellant.", "H. B. Means and J-ohn L. McClellan, for appellee." ], "corrections": "", "head_matter": "Foster-Holcomb Investment Company v. Little Rook Publishing Company.\nOpinion delivered January 23, 1922.\n1. Evidence \u2014 best and secondary evidence. \u2014 In an action on an account, plaintiff\u2019s testimony that the sum sued for was for advertising in a newspaper, and that \u201cevery condition -and promise was lived up to by the publishing company,\u201d without producing a copy of the newspaper, was competent if h knew that such was the fact.\n2. Limitation op actions \u2014 amendment op complaint by substituting parties. \u2014 Where a complaint alleged that the plaintiff, the Arkansas Democrat, was a corporation engaged in printing and publishing a newspaper, an amendment to the complaint alleging that \u201cthe Arkansas Democrat\u201d was the name of a newspaper published by the Little Rock Publishing Company, a corporation, and substituting the name of the latter as plaintiff, was admissible under Crawford & Moses\u2019 Dig., \u00a7 123rf, as it worked no change in the cause of action as respects the running of the statute of limitation.\nAppeal from Hot Spring Circuit Court; W. II. Evans, Judge;\naffirmed.\nWm. R. Duffle, for appellant.\nThe plea in abatement and motion to dismiss should have been sustained. Open account are barred in three years. C. & M. Digest, \u00a7 6950.\nThe motion to strike the amendment and plea of statute of limitations should have been sustained. 97 Ark. 19; 64 Ark. 345; 157 111. 218; 51 111. App. 457; 59 Ark. 441; 67 Mo. 420; 56 Kan. 507; 65 N. W. 583; 95 Tenn. 612; 34 S. W. 381; 63 N. W. 506.\nThe deposition of J.' F. Keeley as to the execution of the contrast was secondary evidence, and should have been excluded. The newspaper containing the advertisement was the best evidence. Jones on Evidence (Civil Cases) p. 244.\nExhibits to pleadings in equity, control the pleadings. 91 Ark. 400. The contents of exhibits to a complaint in equity, will control the alleg-ations of the complaint. 94 Ark. 572; 99 Ark. 218; 104 Ark. 459.\nIn an action founded upon a written instrument, the exhibits are a part of the pleadings. 85 Ark. 223.\nH. B. Means and J-ohn L. McClellan, for appellee.\nThere was no error in allowing the plaintiff to amend its complaint. C. & M. Digest, \u00a7 1229. See also, 78 Ark. 350; 94 Ark. 347." }, "file_name": "0449-01", "first_page_order": 475, "last_page_order": 479 }