Harris v. Townsend , 52 Ark. 411 ( 1889 )

Per Curiam.

1. Partners: Suits between. The authorities cited by the appellee are to . the effect that an action by a partner against his co-partner for injury done to the partnership property is cognizable in a court of law. None goes to the extent of holding that the matter is not cognizable in a court of equity, in an action of account for final settlement.

2. pleading and practice. 3. same. But even if the issue were not properly cognizable in equity, •can it be held that the judgment is void ? Under the code a plaintiff is only required to make a plain statement of his case in his complaint. If the case stated would formerly have been an action at law, either party is entitled to a trial by jury after the manner of the common law; but if the cause as stated would have been distinctly equitable under the old system, then it is triable according to the former chancery method. That is the substantial difference between law and equity under the new procedure. It does not recognize one judge as presiding over separate tribunals, the clash of whose jurisdictions confounds the practitioner and ruins the suitor. One court, endowed with the powers to try all causes, administers the whole law. For its convenience separate dockets are kept for the two classes of cases. If no objection is made to the form of trial — that "is, whether it shall be according to the common law or chancery practice — it is adjudged not to be error to try a common law case according to equity practice, or an equitable case according to the practice of the common law. Organ v. Ry., 51 Ark., 235. It follows that if objection is made, and the court applies the wrong form of trial to the case in hand, it commits only an error in the exercise of rigntful jurisdiction, because the power to determine the cause and the method by which it shall be tried, is devolved upon it. An erroneous judgment pronounced in such a case is not a nullity.

4 Resadjudicata. On the finding of the court, its judgment should have been for the appellant upon his plea of res adjudicata, and such judgment will be rendered here.