# Saxon v. Purma > Supreme Court of Arkansas · April 29, 1974 · 256 Ark. 461 URL: https://www.frixlaw.com/law-library/cases/7819516 ## Case - **Full name:** Jack SAXON v. Arthur F. PURMA - **Court:** Supreme Court of Arkansas - **Decided:** April 29, 1974 - **Citations:** 256 Ark. 461; 508 S.W.2d 331; 1974 Ark. LEXIS 1464 - **Precedential status:** Published - **Opinion:** Dissent by Fogleman - **Judges:** Fogleman, Harris, Jones - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7819516 ## Opinion text JOHN A. Fogleman, Justice, dissenting. 1 can neither follow nor accept the majority opinion and action in this case. As I analyze the opinion, the majority is saying: 1. The action of the trial court on the motion to dismiss by the Commissioner of Revenues somehow affected the proceedings so that no action against the appellant was pending thereafter. 2. That appellee’s pleadings were amended in a matter of substance, apparently by his motion to sever. 3. Saxon had a right to rely upon appellee's motion to tax costs as insulation against his personal liability, and was thereby justified in failing to answer. 4. That appellee first asserted a separate cause of action against Saxon on contract in his motion to sever. I humbly submit that not only the conclusions of the majority but the premises on which they are based are erroneous and that the circuit judge was eminently correct in granting a default judgment. Since I feel that certain portions of the record have been either ignored or not given adequate consideration, I deem it necessary to point out some matters disclosed in the record, at the same time endeavoring to minimize repetition of matter covered in the majority opinion. The prayer of the motion to tax costs is that the claim of Purma for a rental fee be taxed as costs against the plaintiff and the Sheriff of Benton County, “jointly and severally.” As a basis for quashing the service upon him attempted by mailing appellant a copy of this pleading, appellant stated “ ... it is in fact, a complaint stating a cause of action distinct from the action within and has not been served in the manner provided by law.” In his brief in support of that motion, appellant stated: In reality, the petitioners are attempting to state an entirely new and distinct cause of action, based on facts which have nothing to do with the matters litigated in the above suit. As such, the matter is improperly styled, has, not been Filed as a new action, and has not been served by summons as required by Ark. Stat. Ann. § 27-301, et seq. Thus, there is no way in which appellant could be justified in saying that the pleading filed by appellee so misled him that he did not understand that Purma was seeking a judgment against him for $2,756. The nature and function of a pleading has always been determined by this court by its content, and sometimes by the manner in which it is treated by the parties, rather than by its title. Hand v. Northwestern National Insurance Company, 255 Ark. 802 , 502 S.W. 2d 474 . The facts stated in a pleading, not what it is called by the pleader, determine its character and sufficiency. Hoggard & Sons v. Russell Burial Association, 255 Ark. 576 , 501 S.W. 2d 613 . We treat a pleading according to its substance, regardless of what it is called. Home Insurance Co. v. Williams, 252 Ark. 1012 , 482 S.W. 2d 626 ; Craft v. Armstrong, 200 Ark. 681 , 141 S.W. 2d 39 ; Parker v. Nixon, 184 Ark. 1085 , 44 S.W. 2d 1088 . The purpose of pleadings is to arrive at the exact issues between the parties and to apprise each party of what is admitted and what he is required to establish by testimony. Beasley v. Haney, 96 Ark. 568 , 132 S.W. 646 . They are required so that each party may know what issues are to be tried and may thus be in a position to enter the trial with his proof in readiness. Urban Renewal Agency of Harrison v. Hefley, 237 Ark. 39 , 371 S.W. 2d 141 ; Bachus v. Bachus, 216 Ark. 802 , 227 S.W. 2d 439 . This court has stated on numerous occasions that rules of pleading are to be liberally construed, and every reasonable intendment indulged in behalf of the pleader. Craft v. Armstrong, supra; McKim v. McLiney, 250 Ark. 423 , 465 S.W. 2d 911 . Arkansas Statutes Annotated § 27-1150 (Repl. 1962) requires that for the purpose of determining the effects of a pleading, we construe its allegations liberally. The majority has ignored these precepts and characterized Purma’s pleading almost entirely upon the basis of the caption given it by the pleader. This is inconsistent with earlier holdings. In Feldman v. Feldman, 171 Ark. 1097 , 287 S.W. 384 , this court affirmed the trial court’s refusal to quash the pleading filed by a plaintiff in a replevin action and dismiss the action, saying: Where there is a statement of the facts constituting the cause of action, whether the complaint be designated as an affidavit or complaint, it is sufficient to give the court jurisdiction. Climer v. Aylor, 123 Ark. 510 , 185 S.W. 1097 . The affidavit or complaint filed before the justice court has been duly brought into this record by cer-tiorari and is set forth above. The instrument set out above, designated affidavit or complaint, contains a sufficient description of the goods in controversy and their value, and alleged that the plaintiff was entitled to possession thereof and that the defendant was in unlawful possession and unlawfully detained the same, and the plaintiff prayed judgment for the recovery thereof. This complaint was sufficient to give the court jurisdiction of the subject-matter to determine rights of property between the parties under section 8640, C. & M. Digest. In Parker v. Nixon, supra, a receiver for a corporation filed a pleading, which he denominated a petition to vacate a judgment. Summons was issued and duly served. It was urged that the pleading was insufficient because the statute governing such proceedings required them to be initiated by filing a complaint. The court then said: It is true this pleading was denominated a petition, and not a complaint; but this designation was unimportant, as the petition was in the nature of a complaint and contained all the allegations required by the statute. It was, therefore, properly treated by the court as a complaint. Home Insurance Company v. Williams, supra, is particularly applicable here. In that case the defendant insurance company filed a motion to require the plaintiff, its policyholder, to make alleged uninsured motorist tortfeasors third party defendants. In this motion the insurance company alleged entitlement to a judgment over against these tortfeasors in the event plaintiff recover judgment against it. Thereafter, by an amended answer, the company reiterated this allegation, and prayed for judgment over against the tortfeasors, as alternative relief. We held that these pleadings were to be considered as a cross-complaint by the insurance company against the uninsured motorists. In every case which has heretofore come before this court, we have ignored the title given a pleading when the effect of its allegations is clear. We have also spoken to the matter of naming the parties in the caption of the pleading. We held that where a party clearly appeared to be a plaintiff in the body of the complaint, it was immaterial that his name did not appear in the caption. Collins v. Lightle, 50 Ark. 97 , 6 S.W. 596 . See Nunez v. O. K. Processors, Inc., 238 Ark. 429 , 382 S.W. 2d 384 . There is no reason why this rule should not apply to both the plaintiff Purma and the defendant Saxon in this case. Appellant does not, and did not, in the circuit court, contend that service of the summons issued after the filing of his motion to quash was not had according to the return. He only contended that his motion to quash constituted an appearance which prevented a default judgment and that Purma, by his motion to sever, had waived his right to a default judgment. Of course, the idea that the motion to quash submitted Saxon to the jurisdiction of the court is quite inconsistent with the purpose and function of the motion. Such a motion, seeking only the quashing of service, does not defeat its own purposes by bringing the pleader into court for all purposes. Nutrena Mills, Inc. v. Parsons Feed & Farm Supply, 234 Ark. 1058 , 356 S.W. 2d 421 . Certainly, we cannot consider that the motion to quash performed the function of a demurrer sufficiently to prevent a default judgment under the authority of Caine v. Lunon, 209 Ark. 1008 , 190 S.W. 2d 521 , relied upon by appellant. Nor is it the type of motion which must have been disposed of, under the rule of that case, before a default judgment could be entered. In Rice v. Simmons, 89 Ark. 359 , 116 S.W. 673 , an authority relied upon in Caine, we held that, when it appears that the motion could not have been granted or its determination would not affect the plaintiff’s right to proceed, the entry of a judgment by default is not reversible error. After the issuance and service of summons, in this case, the motion to quash became moot and had no bearing on Purma’s right to proceed. In my view the motion to sever changed nothing. In it, Purma stated: the claim was filed as a motion to tax costs; his course of action was essentially a claim on contract for reasonable rental, entered into between him and Saxon; costs taxable in the suit resulting from his claim were merely incidental to his action; consequently, the cause was improperly filed as a motion to tax costs and should be severed and given separate standing as an independent action; separate and independent service of process had been had more than 20 days previously, so he was entitled to default judgment. This pleading was filed after Saxon had moved to dismiss Purma’s motion to tax costs, in which he asserted that the court had no jurisdiction and that the bankruptcy court had exclusive jurisdiction. The trial court, in granting the motion to sever, found that Purma’s claim constituted a separate and distinct cause of action which should proceed as a separate civil action. I am unable to understand how anyone can say that the “complaint” was amended in any matter of substance. No new facts were stated. No new or different cause of action was asserted. No cause of action separate and distinct from that alleged in the motion to tax costs was set out. Nothing changed, except for a docketing of the action between Purma and Saxon, separate from the proceeding out of which the cause of action arose. In Lowery v. Yates, 212 Ark. 399 , 206 S.W. 2d 1 , cited in the majority opinion, we actually held that new service was necessary only when the complaint is amended in a matter of substance, after default. We relied upon Shepherd v. Grayson Motor Co., 200 Ark. 199 , 139 S.W. 2d 54 , cited incidentally by appellant. However, the opinion in that case actually illustrates the principle that, in cases where there has been a default, new service is not required when there is an amendment to the complaint alleging facts which would entitle a plaintiff to incidental relief necessary to effectively accomplish the main purpose of the proceeding. The basis of the holding was that such an amendment did not amount to an amendment in a matter of substance or set up a new or different cause of action. This is in nowise contrary to our holding in Kerr v. Kerr, 234 Ark. 607 , 353 S.W. 2d 350 , also relied on by appellant. In that case, there were simply no allegations inferring any right to relief as to child custody in a divorce action. Naturally, it was held that the portion of the decree awarding such relief was improper after default by the defendant. Here the same relief against Saxon was sought by Purma throughout all procedures. In the original motion, Purma (whether properly or not) sought to join or consolidate his claim 1 that the rental due him be taxed as costs in the case (for which appellant would not be liable) with his claim that he was entitled to judgment, jointly and severally, against the Commissioner of Revenues and appellant. Severance, by definition, is the division of one action into two or more separate and distinct actions and is, in effect, the converse of consolidation. 1 C.J.S. 1379, Actions, § 117; 1 C.J.S- 1385, Actions, § 122. If Purma had filed his motion to tax costs without making the sheriff a party, and filed his complaint against the sheriff in a separate action, the two proceedings, being of a like nature and relative to the same question, might have been consolidated by the court. Ark. Stat. Ann. § 27-1305 (Repl. 1962). 2 If so, joining the two was not prejudicial error. Catlett v. Bradley, 185 Ark. 260 , 47 S.W. 2d 15 ; American Insurance Co. v. Haynie, 91 Ark. 43 , 120 S.W. 825 . A motion to sever was proper. A severance only divides the action into two or more distinct and independent actions, to each of which all the incidents of the original action attach. Hall v. City of Austin, 450 S.W. 2d 836 (Tex. 1970); Campbell v. Durant, 110 Kan. 30 , 202 P. 841 (1921); Bryan v. Spivey, 106 N.C. 95 , 11 S.E. 510 (1890); First National City Bank v. Cervera, 43 Misc. 2d 843 , 252 N.Y.S. 2d 537 (1964); Steinbugler v. William C. Atwater & Co., 16 N.Y.S. 2d 851 (1939). The original causes of action are preserved and may be docketed and proceeded with as distinct actions without further service of summons. 1 C.J.S. Actions § 122 p. 1385. See Keary v. Mutual Reserve Fund Life Assn., 30 F. 359 (E. D. Mo. 1887). I would affirm the judgment. I am authorized to state that the Chief Justice joins in this dissent. Although the propriety- of this procedure is immaterial, appellee may have originally felt that this was proper, or at least not improper, under Ark. Stat. Ann. § 27-1305 (Repl. 1962) or Ark. Stat. Ann. § 27-1301 (Supp. 1973). See Callett v. Bradley, 185 Ark. 260 , 47 S.W. 2d 15 ; American Insurance Co. v. Haynie, 91 Ark. 43 , 120 S.W. 825 . If they were misjoined, the remedy would have been by motion to strike. Ark. Stat. Ann. §§ 27-1302, 1303 (Repl. 1962). Misjoinder is waived by failure to file such a motion. Cooper v. Cooper, 225 Ark. 626 , 284 S.W. 2d 617 . The purpose of the statute was to save a repetition of evidence and unnecessary consumption of time and costs in actions depending upon the same, or substantially the same, evidence, or arising out of the same transactions. St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 482 , 119 S.W. 266 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7819516. Public record. Not legal advice.