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TERM, 1870. ]

Byers, Ex parte.

BYERS, Ex parte.

Appeal from Board of Registration of Independence Countyy.

GREGG, J.

The opinion in the case of John F. Allen, er parte, settles all the questions before the court in this case.

The appeal is dismissed.

GREEN & WILSON v. ROANE & BELL.

Equity-Confederate money act—The act of March 5th, 1867, known as the

Confederate money act, being unconstitutional, no benefit is derived from it, and a court of equity can grant no relief under it.

Appeal from Jefferson Circuit Court.

Hon. WM. M. HARRISON, Circuit Judge.

Wassell f Moore, for appellants.

Bell of Carlton, for appellees.

MCCLURE, J

The record in this case shows that Green & Wilson obtained a judgment against Julia Roane, in the Jefferson county circuit court, for nine hundred dollars debt, and three hundred and seven dollars and fifty-one cents damages, and that said judgment was affirmed by this court at the December term, 1866, (24 Ark. 210.)

Green & Wilson 0. Roane & Bell.

[DECEMBER

Upon this judgment Green & Wilson sued out an execution and the same was levied on the property of Julia Roane, who, together with one M. L. Bell, gave a delivery bond. After the affirmance of the judgment in the case of Roane v. Green & Wilson, (24 Ark. 210,) by this court, the Legislature passed an act entitled “An act for the relief of persons bound by contract for the payment of Confederate money, or other paper currency.” The third section of this act provides that the defendants, in cases where judgments have been rendered against them, may tender the proper amount to be paid according to the rule prescribed in the first section of the act, and enjoin as to the excess of said judgments by a bill in equity.

Under the provisions of said act, Roane and Bell filed their bill and made the necessary tender. At the hearing the Jefferson county circuit court decreed a perpetual injunction as to the judgment at law, save as to the sum of $251 16, and decreed costs against Green & Wilson. From this judgment the defendants appealed to this court.

The sole ground for entering a court of equity was to receive the benefit of the act of March 5, 1867. The question presented involves the constitutionality of the act last recited. In the case of Leach 1. Smith, (25 Ark. 246,) that act was held to be unconstitutional. It follows, therefore, that the decree of the court below must be reversed. The cause is remanded with instructions to dissolve the injunction and dismiss the bill.

JUDGE Harrison being disqualified, did not sit in this case.

Hox. Jous WHYTOCK, special Supreme Judge.

TERY, 1870.] Scott et al. 0. Eaton, Betterton & Co.

Scott et al. v. Eaton, BETTERTON & Co.

Res JUDICATA.-All questions determined when a cause is before this court

on an appeal, are res judicata, and must be treated as settled. EVIDENCE- Appearance by Attorney.- Where the transcript of a judg

ment of record of another State, shows that the parties appeared by attorneys, it is prima facie evidence that they did so appear; and even though there were testimony to show that the attorneys were not duly authorized to do so, the error could be corrected on motion for a new trial; and if the transcript does not show such motion, the evidence is not properly before this court.

Appeal from the Pulaski Circuit Court.

Hox. Sony WHYTOCK, Circuit Judge.

Garland & Nash, for appellants.

Watkins & Rose, for appellees.

Wilshire, C. J.

This is the second time this cause has been before this court. The suit was brought in the Pulaski circuit court by the appellees against Pennywit, on a transcript of a judgment obtained by them in the fourth district court of the city of New Orleans, Louisiana.

Two pleas were interposed by Pennywit in the court below: ist. Nul tiel record; and the 2d. That Pennywit, when the suit in the fourth district.court of New Orleans was commenced, wherein was rendered the judgment upon which this suit was brought, was, and from thenceforth had been, a resident of the State of Arkansas, etc., and was not served with process, and had no notice whatever of the pendency of said suit, and never appeared thereto, either in person or by attorney, and that no one was duly authorized to enter his appearance to such suit, etc.

Scott et ul. 0.

Eaton, Betterton & Co.

(DECEMBER

On the trial, in the court below, the transcript of the judgment rendered in the fourth district court of New Orleans against Pennywit, was excluded from the evidence, and judgment being rendered against Eaton & Betterton, they appealed. On that appeal this court reversed the judgment of the court below, holding that the fourth district court of New Orleans had jurisdiction, and the transcript of the record was properly authenticated, and should have been admitted in evidence, as it raised “a strong prima facie presumption that the defendant did appear in that court by attorney,” and that the evidence offered by Pennywit in the Pulaski circuit court, as appeared in the transcript then before this court, was not sufficient to rebut that presumption, and the cause was remanded to the court below for further proceedings.

The only questions presented by the transcript that demand our attention, are those raised by the proceedings in the court below, subsequent to the mandate of this court. All questions determined when this cause was here on the appeal of Eaton & Betterton, are res judicata, and must be treated by us settled. 6 Ark., 138; 7 Ark:,542; 10 Ark., 186.

Taking that view of this case, the only question we find requiring examination is, whether the evidence introduced by the defendant, at the second trial in the court below, was sut: ficient to rebut the presumption raised by the record of the fourth district court of New Orleans, that Pennywit appeared to the suit of the appellees in that court, by attorney, and defended, etc.

The testimony introduced on the second trial, in the court below, does not seem sufficient to rebut that prima facie presumption. It is true two witnesses, Messrs. Durant and Horner, the counsel appearing of record for Pennywit, in the New Orleans court, state that their recollection of that case is not very distinct. Mr. Durant testifies that so long a time has intervened since the pendency of the suit in the New Orleans court, he cannot recollect any such suit, except in a very faint and indistinct manner, not sufficient to enable him to say any

as

TERM, 1870.] Scott et al. 0.

Eaton, Betterton & Co.

thing about it. Mr. Horner testifies that it is his impression that his firm, Durant & Horner, were employed by Moses Greenwood, on behalf of the owners of the steamboat “Thirtyfifth Parallel,” which was the subject of the suit against l'ennywit in the New Orleans court, and the securities on the bond given to release the boat from seizure under the attachment proceedings.

But Moses Greenwood testified that, as the agent and attorney in fact of Pennywit, to look after and protect his interest in the steamboat “Thirty-fifth Parallel,” he employed Messrs. Durant & IIorner, attorneys, to represent Pennywit, and defend the suit instituted against him in the New Orleans court, which the transcript of the record of that court shows they did.

There appears to be no testimony presented by the transcript to overcome the statement in the record of the New Orleans court, that the defendant there appeared by attorney, etc.; nor does it appear that the defendant, in the court below, produced any testimony to show that the attorneys, appearing of record in the New Orleans court for Pennywit, were not duly authorized to do so.

But, even if there was such testimony, the error could have been corrected in the court below, on a motion for a new trial. There appearing, by the transcript, to have been no motion for a new trial, we think the evidence is not properly before us.

The judgment of the circuit court is, therefore, affirmed.

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