McCracken v. Paul
Supreme Court of Arkansas
Appeal from Greene Circuit Court. W. S. Luna, Special Judge. The pleading, so denominated by appellee, was no cross - complaint.
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Appeal from Greene Circuit Court. W. S. Luna, Special Judge. The pleading, so denominated by appellee, was no cross - complaint. Sand. & H. Dig., § 5712; 32 Ark. 281. Nor was it a valid counter-claim, because: (1) A counter-claim can only set up some breach of the contract sued upon. 27 Ark. 489; 17 id. 245; 26 id. 314; 22 id. 409; 32 id. 284. (2) A counter-claim based on tort is no defense in an action on contract. 57 Ark. 609; 1 id. 338; 4 id. 527. Even in actions of tort, the injury must grow directly out of the tort complained of. 48 Ark. 296: 55 id. 312; 40 id. 75. Nor was the defense…
1Opinion of the CourtBunn, C. J.
The appellant, McCracken, obtained judgment against the defendants, and caused their property, consisting mostly of timber, lumber, and saw mill machinery, to be levied on and sold to satisfy his judgment. An appeal was prayed_from the judgment, but no supersedeas bond was given, and no supersedeas writ issued. At an adjourned day of the term of the court, the defendants having filed a second motion for a new trial, on the ground of newly discovered testimony, among others, and after the execution sale, the court sustained the second motion, and set aside the former judgment, under which the…
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