Ashford v. Richardson , 88 Ark. 124 ( 1908 )

Hart, J.,

(after stating the facts). The sole issue raised by the appeal in this case is. whether the actions for slander and for malicious prosecution may be joined in the same complaint.

Section 6079 of Kirby’s Digest is as follows:

“Several causes of action may 'be united in the same complaint where each affects all of the parties to the action, may be brought in the same county, be prosecuted by the same kind of proceedings, and all belong to one of the. following classes:

“Fifth. Claims arising from injuries to character.”

“Sixth. Claims arising from injuries to persons or property.”

Counsel for appellant contend that the action for slander is included in the fifth class, and that the action for malicious prosecution belongs to the sixth class; and, hence under the section above quoted that the two actions can not be joined in the same complaint.

We do not deem it necessary to decide this question.

The act of May ir, 1905, provides “that when causes of action of a like nature or relative to' the same question are pending before any of the circuit or chancery courts of this State, the court may make such orders and rules concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.” Acts 1905, p. 798.

“The wrong of a malicious prosecution is akin to the wrongs, known under the designation Of slander and lilbel. Though it is injurious in that it is likely to subject the party to expense and trouble to make good his defense, it is also a most effective species of defamation, the defamatory matter being not only published, but made more formal, and apparently authoritative, by the machinery of the law being made use of for the purpose.” Cooley on Torts, p. 225.

The court had jurisdiction of both causes of action, and, if no objection had been made, they could have proceeded to' judgment in the same time. The causes of action were of a like nature. They arose out of the same transaction, and, if separate suits had been brought, the court could have consolidated the two actions.' No exceptions were saved either to the introduction of testimony, or to the instructions of the court, nor is it claimed that the verdict is not sustained by the evidence. The verdict of the jury on the declaration for slander was only one dollar. Hence it is manifest that the action of the court in permitting the two causes of action to be united in the same complaint and to be tried together did not result in prejudice to appellant.

Section 6148, Kirby’s Digpst, provides that no judgment shall be reversed by reason of any error or defect which does not affect the substantial rights of the adverse party. This rule was applied in the case of Mahoney v. Roberts, 86 Ark. 130. The court said: “It was not a prejudicial error to join a cause of action for breach of contract with another for a tort where the same evidence was necessary to sustain both causes, as the two causes of action, if brought separately, might have been consolidated under the act of May nth, 1905.”

Finding no error in the record, the judgment is affirmed.