JoEDEiU.L 'nll:P(lR1'ER, vot 48.
:;.)
Liens" § 194, and casE')S quoted; Hoiv can we tell what parlor·the 85,000 be allotted to the Gil1'sCreek bonds? Of course: as the protectiCiJ1 is for services rendered, there can' be no lien for 81,000, a prospective charge for services to be rendered. But the assignment to J. H. Albin disposes of the"fila,tter. He, with the petitioner and Messrs. Lord & Hyde,were aU engaged on the same side in the same case. If the petitioner has a right to the protection of the court, so, equally, hasaach one of them, in E'ach of them the right is equitable. Barker v. St. Quintin, supra. ;But with this equity Mr. Albin has, so to speak,the legal title. When equities are equal, tlie law will prevail. He cannot be disturbed mhisright of possession. Without entering into. the .questionwhp,ther .Mr. ,Hart was specially retained by the cODJplainant, the petition lDustbe dismissed. "
,
GULF, C. , 'j · ·
&;
S. F.Riv.Co· .,.JAMElt.': t,
(Ofrcw!t Oo'UTt of, :AP'f)eaZ8',.E1.flhth Oircuit. Ootober«'t'nas. 189tJ '
to SumlONS-A)lBNDMBNT'orP (loNPQRUTO ..,. .'" .., '. . ' OIiderMansf. Ark; &5080,whioh'by' Act.' Oong. Mayll;lBOO; 1-ll1,. was ex" tended,'OVer t.he Indiali Terrltbry, it-iaprOper to'a!1ow a 8ummons to,be.amended by from P. sO as .. SAME'-BupFrcrEycT-BTAtBulIlH 0-1 OA:OSlIOp AdTioN. , , Under Mans!. Dig. § it. is.Do o1;ljeoti9nt.o
forth the cau,se of
stated
1D
'..'
1t.
, Mansf.DIg.Ark. § 401&,relating tdjurQrll;whioll, bl: Act. Gong. ,May $,1890, was over t.he Indlal1 'l'erritol'y, t.hat, If eitherp¢r. shllUQl)Sire a pattel, thE! court sha1l9Buse ,the names'of 24 competent. jurors to be piaeedin a box from which t.he names of 18shall"be,drawn Bndentered,Qn,alisk :Seot.wn 4011 provid.es each partY shall befulIDillhE:d. .wit.h a ,list, from whioh eaCh may lIt.rike the names Of three jl1rbrs, and t.he 12 nallies' remaining shall 'co11stltute the )ury. Held,iliat.:the refusatof the court. to furnish ,ilie parties, OD' 1'8'que,st,wit.h such list. of 18,j1lforll is reversible e r r o r . , ' "
OJ'NUIEB.
"
to
.
In :Error to the United, States the Indian the Third Judicial Division. " . ' , .Action by PhilliP. R. 'J 'Mainet the' Gulf, C<;»16rado &. 'Santa Fe R8,ilway Company. There was judgment for plaintiff"anddefendant brings error.. , Reversed., ,, . " " . ". ' , O. L. Jackian, E. D., T{enna, Adiel Sherwood, for 'plaintiff in en'or. Jv. A.. Ledbetter and O. W. Patchell, for dE:lfendantinerror. Befqre NELSON, and:aALLETT,JJ. ' N'ELSoN,J. This waSl\n actionbrou.ght,torecover Bonal injuries sustained by the plaintiff belowthroughtbe alleged nElg;, ligence of the railway.co'mpany, .alid for exposure by'teasdn .of being to leave the 'corilpiul,yafter DeIng lDJured. , On ,thet";al a verdIct for the sum of $2,750.' , , " ,,'
The facts as they appear in the bill of exceptions are these: ' The plaintiff helow, Phillip R. James, was a sectionman employed by the railway company, working on its road near Berwyn station, ill the ChickasawNation, Indian Terr. He was injured on July 12,1890, while aiding in unloading a hand-car. The freight train bringing this car stopped miles from this station, opposite the place where James, with about three other section hands, were eating their dinner, and a road-master, by name Jim Connors, came to the men and said: "We got a hand-car to unload for you boys." He asked where the rest of the men were, and, on being informed,gave orders to unload the car. Six sectionmen, four trainmen, the section foreman, and the road-master assisted in unloading. The road-master gave the sectionmen'instructions to unload, and somaoi" them opened the door, and went into the freight-car, and set thehand.car in a position on one side, and slid it ,out of the door, so that the men outside couln get a: good hold. As the hand..car was partly out,and nearly all the weight rested upon the shoulders:of James, he informed the men, and Some came to his llssist'!tnce, and let it down,: about half way to his wnist',and Jim ConnorS, the road-master, whallad hold of the hand"car, assisting in unloading, gave nn order,' "'Let her go,"ahd the hand-car turned over and fell upon James'f irijuring' his back. 'The character of, the ground where the hand-car wai unloaded' was well' known to J ames, and there is no evidence that it was danget;;;: ous to unload i(at that place I hut only inconvenient, as no form was there. ,The car was furnished for the use of the 'sectionmell' to carry :them to and from their homes; and there is no evidence in the case toshdw that James was carried beyond his 'when, in; to the orders of the 'load-master, he went to aid 'in ing it. The specific acts of negligence charged in the complaint ,are: '(1) That Jim Connors, a road-master of the railway company, 'wHo ordered James to assist in unloading the hand-car, was guilty of gross negligence .and carelessness in selecting ll. place to unload the same where therew8.s no depot platform; (2) by commanding the men asststil1g in unloading to turn the car loose while James was in such a positioh that he 'could not prevent its falling upon him. " , The record furnished is voluminous, made so by the unnecessary tition therein of the same deposition' taken and read on the trial, and .other proceedings prior and subsequent thereto, and also by the ment of errors, 58 in number. Most of them are triviaI,'and indicate that proper care and attention were not given by counsel iiithe preparation of the case. Afew are meritorious: It is urged that the court erred in deciding that it had jurisdiction of the case, anel permitting the pla,intiff below to amend the sum mDns. ' The original complaint was' filed January 17; 1890, in the office of the clerk at "Ardmore," 'where 'the ciJUrt is held for the third judicial division, and on the same day a writ ,of summons was duly'isstled to the D.1arshal, and returned' ,vlth an 'in-dorSement thereon, "Pel'sonally serverl on an agent of the raiHvayd()mpsnyat Ardmore, Indian Territory."This sumzntms
160t on the first day of the next March complaintfiledag'ainst it in said court by Phillip R. Jones, and ,vamsit that upo,n,:failul'E),tQ the complaint will be taken A motiollwas made ,and filed on the fi:l'stday of the March term to'quash the writ of summons, which was withdrawn and renewed on the next day, for reasons alleged briefly: That the summons was improperly and illega-By issued,and,no cause ohction is set forth therein, and the nature of the complaint is not shown; and also th,at there is a. variance in the namE) of the as in the complaint and the summons. granted, a motion tQame.nd the summons ,by changing the nameQf the party plaintiff from Phillip R. Jones to Phillip R. James, the motion to quash the writ was overruled, and rightly. The .amendmeI)t. of the s,ummons was proper, and fully authorized by Mansf. Arkansas statutes, which was the law the Inqian-l'erritory, and governing applications to amend. is as broltd the statutes of the United States relating to aIPtlndments, (Rev. St. U. S.,§§ and the change of the name in was allo\Vedin furtherance of justice, and certainly within, of the court. Neither does the practice act in force in require the nature of the, cause of action as stated in the cPmplaint to the sumnlens. Mansf. Dig. §4968. The cqmp,laipt is filed in the office, and the purpose of the summons is, tQ infonn the of fact, so that. he can ascertain of a9tion againetit. The original complaint was aq:Ililnded, and the defel1d,I'-ptfiled a .which Was overruled, and stIik!'lout same was denied, .and the defendantfil\'ld its. answer.,: W.hen the (lRse. was callnd for:trial the coun· sel for the railway company; before the' jury was impaneled, requested a listof,eighteenoorp.petent and qualified jurors to be mad6'l:a.AA. to furnish cou:o,$el of both parties with a copy of such list, .each partymjgbt ,strike tQe names of not exceeding three said li!3,t: jurors to try this cause should be that thEl this cause be selected as is by the stat. utes, ipJlllch case made anll,provided." This request Was refused, to which exception was taken, and such refusal is duly assigned as error. 1890,congresspallslld an act to enlarge the jurisdiction of the 'Upi,tedStates coqrt in the Jndian Territory. In section 31 certain generai th,estate of contained inMansfieWs Digest, pub. lished in are exte l1 ded over th!'l territory, and among these laws is menUoned (,lhapter 90, the provisions of which relate to the selection and S\lql'moning of jurors and, drawing of a trial jury. Section 4013 of e,nacts party 8hlilll desire a pll.nel, the court this of twenty-four competent jurors, written upon sep shall, paper, tobeplllced in a box, to be kept for thl\t purpose. arate "lYh1qh .Jre naJDes of, eighteen sba,ll be drawn and entered on a list which w,ere drawn and numbered." Section 4014 provldes.that "each, be furnished with aeopy of said list, the nameS of three jurors, and return the from whfRbeach IDay
15i list so struck to the judge, who shall strike from the original list the names so stricken froni.',the copies, aHd the:nrst,twelve names remaining on said origina11ist shall constitute the jIUY.", Section 4015vrovides, in substance, that before'drawini die list 608 the court shall decide all ,lr.e challenges for cause WJlic.h arepresented,.l1pd, ifth are patentjurors, by-standersshaU be summoned until the requisite number jurorsie gJ;lhtine&,ft'pm 'wl):ich said,Wi drawn. Unclei-these sections parties are entitled to have 18j.ut'ors on the list before',they are the.riillt of p,e)."emptorychllllenge. "rhe denial of the request for a panel,asprovided, by the staitute, dethe, defendaAt and gave it a jury' different the law provide:d: .The defendant had only 12jurora,when tbe statute gave it 18 f['()rJ!whiph, it could:strikeoffJ3 names. ' This reJist when par,. quirement of the statute that must make their mandAtorY', and' the court cannot depart. (rom of . TQc)QlB.' ,Tria1a:, ,§ 89; Thomp. diM. Jur; .§§ 267,270, and authorities cited. A takeil.:is a fatal errol'. " AUheclose of the eVIdence. tae defendant moved the court a verdict underf,l;ll'the the plaintiff 'is ·;not entitled torecover..'l'he court decliried to this refllsal,t(jjl.nstrnct the as wasd.u1, excepted to and is assignee{' as error·. A,3th'calW,gPes,ba.ck for a new, trial it ia sufficient say in reference to this that we have looked the forendenca t'elldirig why, the, 'plaintiff;Jllmes,did not let go'of the 'hand-car' when the'other men did,'and that the order ,of. (jOtlllqrs ,was . u,nder caused the injury complained of. TheiEl'is no evidence to show that in sueba that he ¢QuId beingjnjtired, and'Qla'tConnors knew it;:and ,was aHsaR in giving 'the order. ltmnnot be presumed or inferred thatbecausElthe ..ca.r turned unloaded" and,tM plaintiff"Was injJiiai. the railway com,. pany·oisresponsible,therefor. The refusal to givetheinstl'uction' llllked is error. Judgment is reversed. tbf3 Gause isremandeq.,withij'4'e<>>tionsto 81'ant a new trial. .
"j;;\-!;!:
"·i
15S
RDERAL
vol 48.
SANGER et··
t,z. f,. FLOW et ale Ootober Te"" i891.)
Court of Appeals,
.E:tu"'th Oircuit.
L .SsIdhB,NT :roB BBNlIJ'JT OJ' ORlIlDI'lOB_VALJDlTY-INVENTORT. Mauaf. Dig. Ark. S 805, provides that before an assignee fortb,e benefit of oreditI)rs shJ!Jl be entitled to take possessiqn ,0tfJr 'in anr wise control the assigned property he,sh'aIlfile a complete inV'entoty of the property, and a bond in double its estimated 'value.. .H6Zd. that a provision .In the. de.ed of assignment that th.e .assignee shall Dot pO\lsession.uptll he files therequ,ired bond is surplusage, and will be constrUed as authorizlllg him posse8810n before he files an inventory, in vio'la1liohof the terms of the ': I
,Where' a deed of assignment prefers certain oreditors, and l'rovides that the 8neleof tbefund shall be paili to all the remaining creditors pro rota, its validity is , not dected by the faUurUo. Jive in the desd in any schedule attached thereto the names of the creditors' or the amo)lnts due tliein, 8. fU)tlt-TIIlllll OJ' APPLioiTlott OJ' 'PROOBBDS. ' '. : Ndr: ilthe validity of such l'8lJigument a1fectedby fallure'tQ ba,ltmit ot time tor , · to apply the ,ropeed.s oftha assignE1d property.,
.....U.NPBEPBRRED CRBDI'/lORs-SOJIlilDULB.
.' I '
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0'
... 'SUTtrl'IIil-CQltsTBUOTION'-ADOPTIOl!'QJ' Bun LI.WR BY CONGR)jSS.
. Since A.ct Congo .May9j 1890, (26U.. s: Bt. 0.182, ,5 81,) adopt" auid plltllln torce In the Territory of .the. state of Arka",sas, it will1?O presqmed that the oonstruptiou and intllrpretatIon placed onthes8 statutes by the "aupl'8ineoourtt>f the.tatbrpI'ior:thereto were adopted at the, time.
sam'
7. ,4.TTAOJJIlBNT-'-CuiMs BY Tmu PBRSj)Ns-WI#nSSBs-EumNATION. : Whereah 'attachment Ii levied 011' the grolind thatdefendantilhave disposed of their of a. interven,es, claiming,the attach'ed'Jlroperty under an as'sfgnment for the oenefit.of creditOrs, it is within the discretibli Of the coun, on the trial of the intervention, to refuse to allow plainti1f questions to,theassig,nors., . , ,to
pO'AA8llionof or in ,any theassigne,4 property, "ill Dot invalidate t)i.e of assignment as.against'an ,attachment levied after it was executed. Followbig ·OU.l1Iton.y. J'ohnBort, '86 Ark. . , . , .'. . lL 8.uI:E., , , I ' , " '. WheM .1. levied the aellignell ili ab1l!l make aninventorY, anQ".the property ililold' by the marshal as being perishable, an.' inventory by tjleaasJgnee, :whi'Clh adOpts the delOription.undllr Which the propertywu sold by the marsha,)., sufticieut. " :. ' ."
'alialgJmi propeny, as MauSt. Dig. A.rk.S 805,requires him' to do before be takes
The
:roB BBNEI'IIi',0"
of an
for the benefit. of credltors.to file an Inventory otthe
V
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111 not grop.d for a demurrellto his 'petition, but only for a motion for a more specUla statement. On an issue as to the validity of this assignment, evidence that theassignol'8--4 partnership-preferred and provided for the payment of an individual debt of one of them, is irrelevant where there is no allegation that the assignee knew of or participated in this arrangement. 8A.MB-INsnuOTIoNs-ILuWLESS ERROR. ANOY.
The failure of the intervenel"to We the deed of aSSIgnment under which 'he olaiml
.,.
'
t 10.
lL
Where the only objection to the assignment Is that the failed to conform to the requirements of the statute, an instruction that it is the duty of a failing debtor to assign all his property for the benefit of his oreditors is harmless error. Where plaintiff in the attachment denies the validity of the assignment under which the intervener claims, the burden of showing ita validity is thrown on the intervener, and he has the right to open and close.
SAMII-TRIAL-RIGHT TO OPEN AND CLOSE.
Error to the United States Court in the Indian Territory. Action by Sanger Bros. against Flow & Foster, in which L. P. Ander, IOn intervened. There was judgment on verdicts for defendants and intervener, and plaintiffs bring error. Affirmed.