GILL v. GILL.

7. Same-Wards of Chancery

Infants are treated as wards of chancery, and the court, acting as guardian pro hac vice, owes them the duty of protecting and enforcing their rights. (Page 47.)

8. Homestead-Construction of Laws as to

Homestead laws are to be liberally construed to effectuate the purposes for which they were enacted. (Page 50.)

9. Same-Must be Created by Father-General Character of EstateThe deceased husband and father must have impressed the homestead character upon the estate during his life. The widow and children must succeed to him. (Pages 51 and 52.) (For discussion of general character of estate, see pages 51, 52, and 53.)

10. Same-Character of Occupancy by Father

While occupancy of the homestead by the father is an essential to the creation of a homestead in the widow and children, yet the occupancy need not always be actual.

Where G purchased property as a home for himself and family, cleaned up the house and premises preparatory to moving in, and did actually move part of his household goods into house, but was prevented by sickness and soon ensuing death from ever actually residing in same, held: that his acts amounted to such an occupancy of the intended home as impressed upon it the homestead character. (Page 54.)

Statement of

case.

The plaintiff, as administratrix, instituted her action in ejectment in the Pulaski Circuit Court, by filing a complaint in the usual form.

An answer was filed in that court on March 31, 1896, purporting to be one for Anna Gill in her own behalf, and as guardian of Glennie Gill and Riley P. Gill, the infant defendants to the action, each less than 6 years of age.

It seems to have been brought to the attention of the circuit court, that Anna Gill was never appointed guardian. of the infants by the probate court; and thereupon the record the transcript from the circuit court-on April 18

says:

"Come the defendants, by their attorney, and all the defendants having been regularly served with process herein,

GILL. GILL.

by consent Anna Gill is appointed guardian ad litem for Glennie and Riley P. Gill, minors."

No other answer was filed for the infants; but on a subsequent day the transcript shows that a trial of the case was begun, a jury impaneled, and certain witnesses, being called and sworn, testified; but the trial was suspended and the cause, by consent of parties, was transferred to this court.

Messrs. Hill & Auten, for plaintiff.

Mr. James Coates, for defendants.

THE CHANCELLOR:

I. The initial question for consideration is the jurisdiction of this court to proceed with the cause. Its jurisdiction, as the court is now organized, is conferred and measured by sections 1, 15, and 44 of article VII of the Constitution of the State, and the Act of April 1, 1885."

1. Jurisdiction.

2. Same-Transfer.

When a court of chancery is established by act of the General Assembly, under the power contained in section 1 of the article of the Constitution above mentioned, its jurisdiction is limited by section 15 to such matters as it can properly take cognizance of under some one of the recognized heads of equity jurisprudence as that science is administered in courts. of chancery.1 A mere transfer of the case from the law court to this one cannot make an action, which is properly brought at law, one for equitable relief; nor can a mere transfer on an answer which sets up a purely legal defense make that defense an equitable one, and invest this court with jurisdiction to try the Same-Equitable defenses in cause. And should I find such to be the defenses interposed here, the cause should, and would, be retransferred to the circuit court for trial.2

answer.

(a.) See Acts of Arkansas, 1885, 172.

(1.) Hempstead v. Watkins, 6 Ark., 318; Ashley v. Little Rock, 56 Ark., 391. (2.) Dorsey Co. v. Whitehead, 47 Ark., 205, 209; Roberts v. Jacks, 31 Ark., 597, 605; Hughey v. Bratton, 48 Ark., 167.

GILL v. GILL.

An answer may contain equitable defenses, and yet the plaintiff might have the right to a trial by the circuit court; for, under our statute, it is vested with jurisdiction to determine equitable issues presented by way of defense.3

A defendant by simply pleading some defense that is founded in equity, together with others that are purely legal, cannot deprive the plaintiff of his right to trial by jury by transferring the cause to a chancery court in which a jury trial is a matter of grace. But all issues formed upon matters pleaded which are merely defensive may be tried in the circuit court according to the principles involved, whether legal or equitable. Where, however, the answer is made a cross bill, Same-Equit or a separate cross bill is filed, containing matcross bill-Affirm ters of exclusive equitable cognizance, or where by defendants. affirmative relief exclusively cognizable in equity is sought, the defendant has the right to demand a transfer of the cause to the chancery court for trial.®

able defense in

ative relief asked

Same-Concur

Acquiescence in

transfer.

Again, where an answer, filed in a law court, contains only defensive matters of which a court of chancery has concurrent jurisdiction with the court of law, rent jurisdiction the plaintiff has the right to demand a trial by the law court; but if he allow the transfer to be made without objection, he thereby waives his right to a trial by the law court, and the chancery court may hear it, or it may remand it to the law court for trial, because one court has no power to transfer, and compel the trial of, litigation which is the legitimate subject of its jurisdiction to another of concurrent jurisdiction without the assent of the latter.

In

It is the duty of every court to try all issues of which it has jurisdiction, according to the principles involved. Nattin v. Riley, 54 Ark., 32, Mr. Justice Battle says: "Under our Code of Practice in civil cases, all forms of action are

(3.) Sandels & Hill's Digest, § 5722; Trulock v. Taylor, 26 Ark., 54; Organ v. M. & L. R. Ry. Co., 51 Ark., 235, 260.

(4.) State v. Churchill, 48 Ark., 426.

(5.) Sandels & Hill's Digest, § 5619; Harris v. Townsend, 52 Ark., 411, 415.

(6.) Horsley v. Hilburn, 44 Ark., 458, 478.

(7.) L. R. Granite Co. v. Shall, 59 Ark., 405, 409.

GILL v. GILL.

abolished, and the plaintiff in the action is entitled to whatever relief the principles of law or equity would entitled him to; and the defendant 'may set forth in his answer as many grounds of defense, counterclaim and set-off, whether legal or equitable, as he shall have.' So justices of the peace, in cases coming before them, if they have jurisdiction of the subject-matter of the action, may apply and enforce equitable as well as legal principles, but cannot administer equitable remedies."

Where one of two courts of concurrent jurisdiction has taken cognizance of a cause, and is in the exercise of its rightful jurisdiction, the other will not entertain jurisdiction of the same cause; and if it were to do so, it could not affect the jurisdiction of the one first acquiring it. On the other hand, the court first acquiring jurisdiction, when it can try all the issues involved, has no warrant, no justification, for ridding itself of the labor and responsibility of the trial, and no power to compel another to assume them.

And when a complainant selects one of two courts of concurrent jurisdiction in which to prosecute his action, he can, neither by silent acquiescence, nor, indeed, by consent with the defendant, withdraw the jurisdiction from that forum and force it into another for trial without the consent of both tribunals.

That portion of the answer in this case which alleges the occupancy and right of possession, as a homestead, by the defendants of the property involved, contains nothing but a purely legal defense-one cognizable in a court of law. The second paragraph of the answer of Anna Gill, however, if it contain any defense at all, interposes an equitable one; and while her answer is not made a cross bill in express terms, it prays for affirmative relief, and it is clearly the intent of the pleader to make it a cross bill, and it will be accordingly treated as one.9

(8.) Sandels & Hill's Digest, § 5717; Merrill v. Lake, 16 Ohio, 373; Henry v. Tupper et al., 27 Vt., 518; Conover v. Mayor, etc., of N. Y., 25 Barb., 513.

(9.) L. R. Granite Co. v. Shall, 59 Ark., 405, 409.

GILL v. GILL.

The object of her answer, considered as a cross bill, is to have declared, and to enforce, a resulting trust--a matter exclusively cognizable in equity; and for this reason, I presume, the cause was transferred by the circuit court, and will 3. Chancery will be retained to enquire into the truth of the sues having once allegations of the cross bill in that behalf. taken jurisdicAnd, assuming jurisdiction for one purpose, a court of chancery with propriety may, and should, adjudicate all questions involved in the issues formed.10

dispose of all is

tion.

4. Guardian ad litem-Who may not be.

II. Mrs. Anna Gill was a party to the action, and therefore could not, by consent, or in any other way, have been appointed, by the circuit court, guardian ad litem for the infant defendants without a violation of our statute.1 11 Nor could the infants, as parties, consent in person or by attorney to such appointment. At that time no guardian had been appointed for them, and they cannot be bound by the consent of an attorney who assumes (in this instance, no doubt, in the utmost good faith) to act for them.

5. Defenses for

dians.

A suit may be prosecuted by an infant by his guardian or prochein ami; but his or her defense must be infants-Guar made, under our laws, by a regular guardian or a guardian ad litem. And any step taken by an infant defendant in the progress of a cause should be by a guardian of one or the other of the kinds mentioned in the statutes.12

Treating the record of the circuit court as conclusive of the fact that proper service by summons had been made on the infant defendants (the summons and return not being among the original papers transmitted by the circuit clerk) on the 18th of last April, I have deemed it proper to order the appointment of someone as guardian ad litem for the infant defendants, who is not a party to, or an attorney in, this case.

(10.) Crease v. Lawrence, 48 Ark, 312; Radcliffe v. Scruggs, 46 Ark., 96.

(11.) Sandels & Hill's Digest, § 5648.

(12.) Sandels & Hill's Digest, §§ 5645, 5647; Hodges v. Frazier, 31 Ark., 58; Williams . Ewing, 31 Ark., 229.