(248 S.W.) and still hold the consignor liable upon the 949, 167 C. C. A. 241, is directly in point, and contract of shipment." In this statement of the law the court manifestly used the words "consignor or owner" interchangeably as meaning the same unless , the consignor is a different person from the owner, and made the contract of shipment as agent for the owner, in which case the owner would be liable as an undisclosed principal. [1] The determination of this case turns, then, on the question whether, under the facts, the original vendors, as the consignors under the recitals of the bills of lading, acted for themselves or as agents of the fuel company. Under the contracts between the vendors and the fuel company the deliveries were to be made f. o. b. at point of shipment, consigned to the quartermaster at Camp Pike. The consignment was a part of the duty of the vendor in making delivery, and he was acting for himself, not as agent for the fuel company. This is true, notwithstanding the fact that under the contract of sale the freight charges were to be paid by the purchaser at destination. The fuel company was not the undisclosed consignor, for it did not make the consignment, either in its own name or through an agent. Nor was the fuel company the consignee, either in name or undisclosed. There is evidence to show that the quartermaster was to receive the goods and pay the freight, not as agent for the fuel company, but on his own behalf as purchaser and consignee. supports our conclusion in the instant case. The only difference between the two cases is that the consignment in the Wallingford Case was under contract of sale to shipper's own order with bill of lading attached to draft, and the purchaser paid the draft and received the bill of lading during transit, and then resold the goods and assigned the bills of lading to his purchaser. The court decided that the first purchaser did not, by becoming the owners during a brief period during transit, render themselves liable for the freight charges. There is no difference in principle between the question of liability in that case and in the present case. Our conclusion also finds direct support in the decision of a Texas Court of Civil Appeals in the case of Railroad v. Browne Grain Co., 166 S. W. 40. The question of liability for freight charges as between the quartermaster and the fuel company under this contract of sale is not involved further than is necessary to determine whether or not the former received the consignment as agent of the latter, and, as before stated, there was sufficient evidence to show that there was no agency. The judgment is therefore affirmed, and judgment absolute will be rendered here against the plaintiff's right to recover. SMITH, J., dissents. BANK OF GILLETT v. BOTTS. (No. 221.) [2] All that has been said thus far relates to the charges on the carloads other than the three which were consigned to the fuel company at Little Rock and resold and diverted in transit. The question of liability or nonliability for the charges on those three carloads rests on other grounds. It falls squarely within the principles announced in I. Landlord and tenant 245-Landlord, signRailroad v. Gramling, supra. ing note as surety, held entitled to lien on crop. The fuel company was originally the consignee, and by acceptance of the goods at destination would, by implied contract, have become liable for the freight charges. But there was, with consent of the carrier, a diversion to another consignee at another destination, and the consignment thereby became, in effect, one from the original point of origin to the last-named destination. It was a single consignment, and liability for the entire charges could not be split. The fuel company, or the last-named consignee, is liable for all or none. The fuel company was consignee only during a part of the period of transit, ceasing to be such before the transportation service was complete. This does not make the fuel company liable for the charges for service. The decision of the United States Circuit Court of Appeals for the Eighth Circuit in the case of Wallingford v. Bush, 255 Fed. (Supreme Court of Arkansas. 1923.) March 12, tion of six months for continuance of landlord's lien after rent due held inapplicable under evidence. An action was begun December 20, 1920, to enjoin a tenant from selling a rice crop grown on plaintiff's land without paying rent, in which a receiver was appointed to take charge of it for the court, and thereafter a mortgagee of the crop seized and sold it, and was thereafter made a party to the action September 2, 1921, but claimed plaintiff had lost his lien by not bringing suit within six months after the rent was due, and that it was due at the end of 1920. Held, under the evidence, that the mort For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes gagee's act in selling the rice was a conversion | signature is, "G W. Botts, Surety." But the in the hands of the court, and the six-month plaintiff signed this note to procure some limitation was inapplicable. sacks in which to put the rice after it was thrashed. It was necessary to put the rice in Appeal from Arkansas Chancery Court; sacks to preserve it. The plaintiff in reality John M. Elliott, Chancellor. Suit by G. W. Botts against L. K. Menard and others, in which Bank of Gillett was made a party defendant. Judgment for plaintiff, and defendant Bank of Gillett appeals. Affirmed. On the 20th of December, 1920, G. W. Botts brought this suit in equity against L. K. Menard to enjoin him from selling rice grown by said Menard and his codefendants on the land of the plaintiff without paying the rent. The codefendants of Menard had previously filed suits in the justice court, claiming a laborer's lien on said rice. A temporary injunction was granted as prayed for in the complaint, and Menard was appointed receiver to take charge of the rice, and was directed to allow it to remain in the Gillett warehouse until the further orders of the court. Subsequently the Bank of Gillett took charge of said rice without any order of the court, and sold it at private sale for the purpose of satisfying a mortgage which it held on the rice crop grown by Menard. L. K. Menard was a witness for the plaintiff. According to his testimony he grew a crop of rice on the land of the plaintiff in the Southern district of Arkansas county, Ark., during the year 1920. The landlord was to receive one-third of the rice for his rent. After the rice was thrashed it was stored in the Gillett Warehouse Company. The Bank of Gillett had a mortgage on Menard's share of the crop. The plaintiff did not waive his landlord's lien on the crop. The witness never gave the bank any authority to take charge of the rice and sell it. The plaintiff never gave Menard permission to authorize the bank to take charge of the rice and sell it. The rice had not been divided at the time the bank took charge of it and sold it. G. W. Botts, the plaintiff, was a witness for himself. According to his testimony he was to receive one-third of the rice grown by L. K. Menard as rent. The rice was grown on the farm of the plaintiff by Menard, and delivered by the latter to the Gillett Warehouse Company to be kept in storage. The plaintiff never gave the Bank of Gillett authority to take charge of the rice and sell it, nor did he authorize Menard to do so. The plaintiff thought that the rice was being held in the warehouse by Menard as receiver in the suit filed by the plaintiff against Menard and others in the chancery court. Soon after the plaintiff found that the bank had disposed of the rice crop, he made it a party defendant to the present action. The plaintiff signed the note of Menard to the Home Bank of De Witt for $250. The furnished these sacks to Menard as supplies to be used in gathering and preserving the rice crop. The plaintiff paid the note on June 1, 1921. The plaintiff's testimony in this respect is corroborated by that of Menard. Menard did not pay the plaintiu any of the rent, or any part of the amount of the note given to procure money with which to purchase the rice bags. According to the testimony of the Bank of Gillett, it had a valid mortgage on Menard's share of the rice, and no part of the mortgage indebtedness had been paid. Menard gave the bank authority to take the rice, sell it at private sale, and apply the proceeds towards the satisfaction of the mortgage. The sale of the rice was made by the bank more than six months after the 20th day of December, 1920. The chancellor found the issues in favor of the plaintiff, and a decree was accordingly entered in his favor for the amount of the rent and supplies due him. T. J. Moher, of Gillett, for appellant. Botts & O'Daniel, of De Witt, for appellee. HART, J. (after stating the facts as above). [1] Section 6889 of Crawford & Moses' Digest gives the landlord a lien upon the crop grown upon the demised premises in any year for rent. Section 6890 gives the landlord a lien for any necessary supplies, either of money, 'provisions, clothing, stock, or other necessary articles advanced to the tenant with which to make and gather the crop. The section further provides that the lien shall have preference over any mortgage of the crop made by the tenant. The bank insists, however, that it is only liable to the plaintiff for the amount of the rent due him, and is not liable for the note signed by the plaintiff, because the plaintiff signed the same as surety for the tenant. Hence they claim that the case falls within the doctrine of Kaufman v. Underwood, 83 Ark. 118, 102 S. W. 718, 119 Am. St. Rep. 121, where it was held that the landlord may not claim a lien as for supplies furnished to his tenant, where the tenant purchased a horse for whose purchase price the landlord went security. On the other hand the plaintiff relies upon the case of Walker v. Rose, 153 Ark. 599, 241 S. W. 19. In that case it was held that, where a landlord directed a merchant to furnish supplies to the tenant for which the landlord agreed to pay, and subsequently paid, the landlord, in effect, furnished the (248 S.W.) supplies to the tenant, and was entitled to a, preference lien therefor. In that case, as here, a bank had a valid mortgage on the crop of the tenant, but knew that the tenant was raising the crop on the land of the plaintiff. The landlord had also become responsible to a mercantile company in the amount of certain advances made by it of money and supplies which were used by the tenant in the cultivation of his crops. The court held that the facts justified a finding that the money and supplies furnished through the mercantile company were in reality furnished by the appellee. Hence it was held that it was not a case of a landlord becoming a mere surety for his tenant, but that the facts warranted the conclusion that the landlord himself was primarily responsible to the mercantile company. In the instant case, according to the testimony of the plaintiff, he in reality furnished the money to the tenant with which to buy the rice bags for the purpose of preserving the rice. It was absolutely necessary to put the rice in bags after it was threshed in order to preserve it. Although the note shows that Botts, the plaintiff, signed it as surety, yet under the attending circumstances the chancellor was warranted in finding that Botts was primarily liable for the money which was used in purchasing the rice bags to preserve the crop. The landlord paid the note at the bank, and the purchase of the rice bags inured to the benefit not only of the landlord, but his tenant, and to the bank, which was the tenant's mortgagee. The bank knew that the rice was grown on the land of the plaintiff, and therefore it is liable to the plaintiff for its value to the extent of the landlord's lien for rent and the supplies furnished by him, which was established by the proof. [2] It is next insisted that the judgment should be reversed because the suit was not brought within six months after the rent was due and payable. The bank was not made a party to the suit until the 2d day of September, 1921, and it is insisted that the rent was at least due at the end of the year 1920. It will be remembered, however, that this suit was commenced by the landlord against the tenant and some laborers who were attempting to assert laborers' liens on the rice crop. The object of the suit was to establish the landlord's lien as superior to that of the laborers for the rent, and also the money advanced by him for supplies. Menard, the tenant, was appointed receiver by the chancery court to take charge of the rice and hold it in a designated warehouse until the further orders of the court. tenant that no authority was given to the bank to take charge of the rice and sell it under its mortgage. The action of the bank, therefore, amounted to a conversion of the rice which was in the hands of the court. Hence the limitation of six months provided by the statute for the continuance of a landlord's lien after the rent shall become due has no application. It follows that the decree will be affirmed. FIRST NAT. BANK OF MANCHESTER, (Supreme Court of Arkansas. March 12, 1. Judgment 497 (1)-Recitals showing notice on defendants taken as true unless contradicted by evidence. Recitals in a judgment that defendants, although having been duly served with summons in manner and form as provided by law, failed to appear, etc., were prima facie evidence of the facts stated, and must be taken as true unless there is testimony to contradict them or tending to show the contrary, under Crawford & Moses' Dig. § 6289, subd. 4. 2. Judgment 461 (4)-One suing to set aside default judgment must show that he did not know of proceeding in time to make defense; absence of record entry as to service being insufficient. In an action to set aside a judgment by default on the ground of fraud in that plaintiffs represented to the court that defendants had been duly and legally served with summons when in truth and fact neither defendant had been so served, the fact that there was no entry on the docket by the clerk showing service of summons as provided by Crawford & Moses' in the sheriff's office showing a return, nor any Dig. § 1280, and no original summons found return on the copies in evidence, would not sustain the cause of action in the absence of evidence that plaintiffs did not know of the proceedings in the original action in which judgment was rendered against them in time to make a defense. 3. Pleading 374-Denied verified complaint cannot be taken as true. Where a verified complaint is denied, its allegations are not testimony, and cannot be accepted as facts proved. Appeal from Lee Circuit Court; J. M. Jackson, Judge. Action by A. Dalsheimer and others against the First National Bank of Manchester, Iowa. From a judgment for plaintiffs, defendant appeals. Reversed and remanded. Bogle & Sharp, of Brinkley, for appellant. It is true that the bank testified that it took the rice from the warehouse and sold it under authority given by the tenant. The court was warranted, however, in finding from the evidence of the plaintiff and the Daggett, of Marianna, for appellees. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes WOOD, J. The appellant obtained judg-, ed the process for service received by him ment in the circuit court of Lee county from the clerk of the circuit court for the against the appellees, which recites as period beginning November 15, 1920, and endfollows: ing January 2, 1921. This record did not show any receipt of summons in the original action by the appellant against the appellees in which the judgment here sought to be set aside was rendered. "Now on this the 11th day of April, 1921, the same being a regular day of the April, 1921, term of said court, this cause coming on to be heard, the plaintiff appeared by its attorneys, Bogle & Sharp, and the defendants, although having been duly served with summons, in manner and form as provided by law, failed to appear, plead, answer or demur, but wholly made default, whereupon the cause is submitted to the court upon the complaint and the original note sued upon, and, after being well and sufficiently advised in the premises, doth find that plaintiff is entitled to recover on said notes the sum of $2,498.23 from said defendants." The appellees also introduced one Galloway who testified that he was the then sheriff of Lee county. He assumed the duties of the office January 17, 1921. He did not until the April term, 1921, serve a summons on the appellees in the original action by the appellant against them. He did not find the original summons in that case in his office, but a copy thereof, and there was no return service on the copy. He did not know whether the sherThen follows the formal entry of the judg-iff who preceded him served the summons ment in favor of the appellant against the or not. appellees. The present action was instituted by the appellees against the appellant to set aside the above judgment. The appellees in their complaint set out the judgment and alleged that the same was obtained against them by the appellant through fraud, in that appellant represented to the court in which the judgment was rendered "that due and legal summons giving these plaintiffs, defendants in said suit, notice of the pendency of such action, when as a matter of fact neither of said defendants in said action, plaintiffs here, were ever at any time served with proper summons or any notice whatever giving them notice of the pendency of such suit against them on the part of the First National Bank of Manchester, Iowa, defendant herein, but these plaintiffs now further aver and allege that at no time was the notice of the pendency of such suit given them in the manner provided by law, or in any other manner." Then follow allegations which it is unnecessary to set forth at length, but which set out that the defendants had a meritorious defense to the action in which the judgment was rendered against them. The appellant, in its answer, admitted that it obtained the judgment for the sum alleged. It denied that plaintiffs had no notice of the pendency of the action and that no legal service was had on them, and denied the other allegations of the complaint, and set up that it was an innocent purchaser of the notes upon which the judgment in its favor was rendered. The appellees introduced the original docket entries which show the following: "Complaint filed and process issued 16th day of November, 1920, service had of 19-." day The sheriff of Lee county, Arthur Cotter, at the time the original action of the appellant against the appellees was instituted, and whose duty it was to serve the summons, kept a record in his office in which he enter The appellant introduced one of its attorneys in the original action, who testified that on the day the judgment was taken, the court was in session, and he asked the court for judgment by default against the defendants in the original action and the court rendered a judgment in accordance with his request, and he prepared the precedent of the judgment as disclosed by the record. Upon the above facts the court found that the defendants in the original action were not served with process and did not have notice of the pendency of that action. The court further found that the plaintiffs (appellees in the present action) had a meritorious defense. Thereupon the court entered a judgment setting aside the judgment of April 11, 1921, in favor of the appellant against the appellees rendered in the original action. The appellant duly prosecutes this appeal. [1] This is a direct attack by the appellees upon the judgment of the circuit court rendered in favor of the appellant against the appellees on April 11, 1921, under section 6290 of Crawford & Moses' Digest, subd. 4. But the recitals in the judgment that the defendants, "although having been duly served with summons in manner and form as provided by law, failed to appear," etc., were prima facie evidence of the facts stated, and must be taken as true unless there is testimony to contradict them, or tending to show to the contrary. Section 6239, C. & M. Digest; White v. Smith, 63 Ark. 513, 39 S. W. 555; Love v. Kaufman, 72 Ark. 265, 80 S. w. 884. [2] The original docket entry in the case made by the clerk shows that the complaint was filed and that process was issued on the 16th day of November, 1920. Section 1280 of Crawford & Moses' Digest provides that "The entry on the law docket shall also show whether or not the summons has been fully served in due time for trial, and whether or not the issue has been formed." (248 S.W.) "Neither of said defendants in said action were ever at any time served with proper summons, or any notice whatever giving them notice of the pendency of such suit against them." There is no entry by the clerk showing that [ [3] The appellees alleged in their complaint the summons had been served in time for thattrial. The absence of such entry by the clerk on the law docket which he is required to 'keep, to be sure, is evidence to be considered in determining the issue as to whether or not the summons was served on the appellees in the original action in which judgment was rendered against them. Likewise the fact that no original summons was found with the return of the sheriff showing service, nor any return on the copies that were in evidence are to be considered in determining the issue as to whether or not the defendants in the original action were served with summons. Conceding, without deciding, that these facts, with the presumptions attending them that the officers had performed their statutory duty, might be sufficient, if there were nothing else in the record, to sustain the finding of the trial court that the appellees were not served with process in the original suit, nevertheless appellees have failed to sustain their cause of action, because they have utterly failed to show that they did not know of the proceedings in the original action in which judgment was rendered against them in time to make a defense. This was essential. In State v. Hill, 50 Ark. 458, 8 S. W. 402, Chief Justice Cockrill, speaking for the court, said: "One who is aggrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceeding in time to make de fense." This language was also quoted by us in the case of Moore v. Price, 101 Ark, 142–145, 141 S. W. 501. 248 S.W.-37 And futher: "That at no time was notice of the pendency of such suit given them in the manner provided by law, or in any other manner." The appellant specifically "denies that the plaintiff had no notice of the pendency of the action and that no legal service was had on them." It will be observed that the appellants did not allege in their complaint that they did not know of the pendency of the action in which judgment was rendered against them in time to make a defense thereto, and there is no testimony in the record to show that the appellees did not know of the pendency of the action and the proceedings that were had therein in time to make defense. It is a very significant fact in this record that none of the appellees testified that they did not know that the action was pending and of the proceedings had therein. Their verified complaint was denied, and therefore its allegations are not testimony, and cannot be accepted as facts proved, even if it had been therein stated that the appellees did not know of the pendency of the action. The findings and judgment of the circuit court are therefore erroneous. The judgment is reversed, and the cause remanded for a new trial. |