{
  "id": 1870983,
  "name": "Kearney, Assignee, v. Moose et al, Receiver",
  "name_abbreviation": "Kearney v. Moose",
  "decision_date": "1881-05",
  "docket_number": "",
  "first_page": "37",
  "last_page": "39",
  "citations": [
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      "cite": "37 Ark. 37"
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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    "name": "Ark."
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      "cite": "33 Ark., 745",
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  "last_updated": "2023-07-14T19:57:17.182005+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Kearney, Assignee, v. Moose et al, Receiver."
    ],
    "opinions": [
      {
        "text": "English, C. J.\nThis action was brought by James M. Moose and Carroll Armstrong, as receivers in chancery, against John W. Grill for rent, and an attachment sued out under the landlord\u2019s lien act. Cotton and com were attached and bonded by defendant.\nDefendant filed a motion to quash the attachment, for informality of the affidavit, &c. Plaintiffs filed an amended affidavit, which defendant moved to strike out, but the-motion was not acted on by the Court.\nDefendant filed an answer to the complaint, traversing its allegations, &c.\nPending the suit Grill was adjudged a bankrupt, and Win. Kearney, his assignee, was substituted as defendant.\nThe cause was finally submitted to a special Judge, sitting as a jury, on the complaint and answer, and finding, and judgment for plaintiffs.\nDefendant filed a motion for a new trial, but the Court finally adjourned without any decison upon it.\nAfterwards, in vacation, defendant procured the special Judge to sign a bill of exceptions, setting out the evidence introduced on the trial,- the declaration of law made by the Court, and the motion for a new trial, in which the special Judge stated that' he would have overruled the motion for a new trial had it been Submitted in term when he was present, but he was called away and the motion was not overruled.\nAfter the bill of exceptions was obtained it was filed with the Clerk of the Court below, and the Clerk of this Court granted defendant an appeal.\nThere is no question properly presented for the decision of this Court on this appeal.\nThe case stands as if no motion for a new trial had been made, and no bill of exceptions taken. Young, Trustee &c., v. King et al., 33 Ark., 745.\nThe points argued by counsel for appellant arise upon facts stated in a bill of exceptions irregularly taken, and might be considered and decided if the motion for a new trial had been overruled, and bill of exceptions properly taken. Leaving the bill of exceptions out of view, there appears upon the face of the record proper, no ground for reversal.\nAffirmed.",
        "type": "majority",
        "author": "English, C. J."
      }
    ],
    "attorneys": [
      "Clark \u00e9 Williams, for appellant:",
      "Jno. Fletcher, for appellee :"
    ],
    "corrections": "",
    "head_matter": "Kearney, Assignee, v. Moose et al, Receiver.\n1. Practice in Supreme Court : Bill of Exceptions signed in Vacation.\nWhen a motion for new trial is not acted on by a special judge trying the case, and a bill of exceptions is afterwards signed by him in vacation with a statement that he would have overruled the motion if he -had not been called \u00a1away, the ease stands as if no motion for new trial had been filed and no bill of exceptions taken, and presents no question for the decision of this court.\nAPPEAL from Conway Circuit Court.\nHon. 0. B. Moore, Special Judge.\nClark \u00e9 Williams, for appellant:\nMortgagee not entitled to back rents or profits on foreclosure. Jones, on Mort., sees. 670, 671 ; 3 Ind., eh. 186 ; 91, U. 8. (1 Otto.) 603; 5 Bish., 237.\nThe jurisdiction of the Chancery Court was ample; no attachment necessary. \u00c9esides it was not in this case authorized by the acts under which it was brought, (acts of 1861, p. 101, Gantt\u2019s Digest.) Fletcher & Hotze had not the landlord\u2019s lien ; it belonged to the estate ; Gill no party to the transfer of the claim. Hence the giving and refusing of the instructions were erroneous.\nArgued upon the facts that there was no ground for attachment, even if allowable on grounds.\nBesides, Gill was a partner with Mrs. Carroll, and not strictly a tenant. The jurisdiction was in equity alone.\nJno. Fletcher, for appellee :\nThe affidavit was sufficient, or if not, amendable. 4 Met., {Ky.) 342; 17 B. Mon., 324; 2 Bush., 191; 7 G., 383; 13 IJow. Pr., 348 ; 65 N. C., 645; 33 Ark., 406; Gantt\u2019s Digest, secs. 394, 4616, 4619, in support of the complaint, and of the right of receivers to sue under the decree cited, Gantt\u2019s Digest, sec. 4813. The tenant must attorn to receiver ; 2 Jones on Mort., sec. 1536 ; 3 8andf. (N. Y.) oh. 69 ; 1 Hilliard on Mort., 199 ; (chap. 19, sec. 28, et seq.) ; 1 Met., 494; 13 G., 352; 8 Paige (JST. Y.) 565.\nThere was no timely action on the motion for a new trial,, and upon the bill of exceptions, to make them \u00e1 part of the record, and none of the matters are properly here for decision."
  },
  "file_name": "0037-01",
  "first_page_order": 35,
  "last_page_order": 37
}