
    Simon vs Thompson.
    Opinion delivered January 14, 1898.
    
      i. Master's Report- — Judgment Upon in Vacation Void.
    
    The master in chancery to whom this case was referred, too certain testimony and reported not only upon the question ( allowing interloctutory orders, but upon the facts and accoc panied with conclusions of law upon the case. The masti concluded as a matter of law, that the complainant was n< entitled to the relief prayed for. The next day the court i vacation confirmed the master’s report. Held, The masti having reported that the complainant was not entitled to tl relief prayed for, this was a final judgment upon the meri and having been made in vacation, was void.
    
      2. Judgment in Vacation upon Master's Report not Cured by Subsegue Judgment in Term Time.
    
    After judgment upon the report of the Master had been render' in vacation, the plaintiff filed a motion to require the mast to return the testimony taken by him upon which he based report, and the motion to vacate the judgment of the co entered in vacation. The master supplied what purported be the evidence taken. The court overruled the motion to aside the judgment rendered in vacation, and again confirm the master’s report, and rendered judgment for defendant on the hearing of defendant’s motion for confirming the m ter’s report. The evidence showed that the only matter tri at the hearing before the master, was for temporary relief on That the evidence was not written down at the examinath no opportunity was given plaintiff to introduce any evider upon the merits. Held, The judgment for defendant upon merits was erroneous.
    Appeal from the United States Court for the Southej District.
    C. B. Kilgore, Judge.
    
      Suit in equity by Harry Simon against J. B. Thornp-on and others. Judgment for defendants. Plaintiff ap-leals.
    Reversed.
    The complaint in this case, filed in the United States ourt at Purcell December 23, 1895, alleged that about the 5th day of August, 1895, the plaintiff borrowed from the rm of Turk Bros. & Co., of Purcell; Ind. Ter., the sum of 2,000, to buy a certain stock of goods and fixtures; that to ecure the debt thereby contracted, the plaintiff pledged the took of goods and fixtures to Turk Bros. & Co., and per-litted Turk Bros. & Co., to hold and insure the same in aeir name; that said stock of goods was replenished from ime to time by the plaintiff; that on the 19th day of Novemer, 1895, Turk Bros. & C®. executed an assignment of their roperty to J. B. Thompson, for the benefit of their credits, and transferred to him, as a part of their estate, the ;ock of goods and fixtures mentioned, together with the in-irance policies held by them as security for the debt; that i that time, and at the the time the complaint was filed, a art of the debt remained unpaid; that defendant J. B. hompson, as assignee of Turk Bros. & Co., had taken Dssession of the stock of goods and insurance policies, aiming to own the same as a part of the property of Turk ros. & Co., conveyed to him in the assignment; that the aintiffhad demanded possession of the goods and insur-íce policies from J. B. Thompson, who refused to deliver Lem. The plaintiff prayed that J. B. Thompson be re-rained from selling the goods under the deed of assign-ent, that a receiver be appointed to take charge of the ■operty and manage the business pending the litigation, at an accounting be had of the amount due by plaintiff to sfendant, and that the plaintiff be allowed to pay the aountdue on the debt owing to Turk Bros. & Co., and to deem the stock of goods and fixtures, and for such other lief as he may be entitled to. None of the defendants, except J. B. Thompson, as assignee for said Turk Bros. & Co. answered in the case. In his answer, J. B. Thompson, a assignee, denied that Harris Simon ever had any interest o title to the property sued for,, or that he ever had posses sion of any part of it, except as the agent of Turk Bros. ¿ Co., and alleged that Turk Bros. & Co., were the exclusiv owners of the property, and conveyed to him the title t the property in the deed of assignment, and set up title t the same as their assignee. The plaintiff gave the defend ants notice that he would apply to the master in chancer for a temporary restraining order, and.for the appointmei of a receiver. At the hearing in response to this notice tb issues between the plaintiff and the defendant were invest gated before the master in chancery. The master in chai eery filed his report in court, denying the relief prayed fo: When this report was filed it was brought up before Jud£ Kilgore at his chambers in Ardmore, and he made and ord< confirming the same, and denying the application for tl appointment of a receiver, and for the injunction restrainir the sale of the goods sued for under the assignment. I further ordered that the costs of the proceedings be tax< against the plaintiff, Harris Simon. At the April term court, at Purcell, where the case was pending, plaintiff fib exceptions to the master’s report, and in connection ther with a motion to require the master in chancery to retu: into court the testimony taken before him. In response I this motion the master in chancery filed in court the tesl mony taken before him at the hearing. When the case wl called for trial the exceptions to the report of the master H chancery were overruled, and the court proceded, on cl fendant’s motion, to enter up judgment according to t recommendations in the master’s report. To this action the court the plaintiff duly excepted, and his exception w allowed. A motion for a new trial by the plaintiff was di overruled, and he has appealed to this court.
    
      
      J. W. Hoclcer, Zol J Woods for appellant.
    1. The hearing before the Master was merely upon nterlocutory motions and the judgment of the court in va-ation rendered upon the report of the Master was void. Irumley vs State, 20 Ark. 77; Grimmett vs Askew, 48 Ark. 51; s. c. 2 S. W. 707. And this was not cured by the court /hen it met entering judgment again upon a report of the faster which was written out from memory four months fter the hearing. Hicks vs Hogan, 36 Ark. 298. There ras a question of fact in this case, as well as a question of iw and the question of fact should have been submitted to jury. Oconnor vs Cook, 8 Yes Jr. 535; State vs Churchill, 48 Ark. 426; s. c. 3 S. W. 352.
    2. Plaintiff’s bill states a cause of action entitling im to relief in equity. Hart vs Ten Eyck. 2 Johnson, 62; kiff vs Stoddard, (Conn.) 21 L. E. A. 102; Blodgett vs lodgett, 48 Yt. 33; Merrell vs Houghton, 51 N. H, 61; mes on Pledges, (1883) § 557; Eogers vs Yarnall, 10 S. W. ¡2, s. c., 51 Ark. 198. Again under the liberal provisions : the code; it was error to dismiss the bill, even if plaintiff id mistaken his remedy; he should have been allowed to uend his petition. Organ vs Eailway, 51 Ark. 235; s." c., . S. W. 96; Ashley vs Little Lock, 56 Ark. 392; s. c., 19 W. 1058.
    
      W. A. Ledbetter, and S. T. Bledsoe for appellee.
    No brief is on file for appellee.
   Springer, C, J.,

(after stafing the facts). Counsel r appellant assign the following errors in this case: (1) íe court erred in overrulind the motion to vacate the igment, because said judgment was entered in vacation, d not in term time; the hearing of the cause was in chambers, and not in open court; was ex parte; not had at a tim< and place of which the plaintiff had any notice to appear, o: knowledge of the proceedings; because the judgment wa rendered without any hearing as to the merits. (2) Th court erred in not sustaining the- plaintiff’s exceptions t< the master’s report, and in sustaining the motion of defenc ants to confirm the report of the master, because there wa no testimony before the court to support the finding of th master, and the court simply followed the opinion of th master, without inquiring into the testimony upon whic such opinion was based; thereby, in effect, delegating th power and authority of a judge to hear and finally detei mine, to the master. (3) The court erred in overrulin plaintiff’s motion for a new trial, because a full hearing c the merits of the case had been denied the plaintiff, and b< cause the judgment of the court was not sustained by an testimony produced before the court. (4) Because tl manner of proceeding in this case is wholly unknown to ti law and our system of jurisprudence. We will consid these assignments of error in their order.

It seems that the master in chancery, to whom tb case was referred by the court, at the hearing of the petiti< of appellant for a restraining order and for the appointme of a receiver, took certain testimony, and reported, not on on the question of allowing the interlocutory orders, but ul on the facts, and accompanied his conclusions of fact wil his conclusions upon the law of the case. This hearing w at Purcell, and in vacation. The master stated at the cc elusion of his findings of fact as follows: “I conclude, as matter of law, from the foregoing findings, that the co plainant is not entitled to the relief prayed for, and so : port. ” On the following day, at Ardmore, without notice the plaintiff, the judge, in chambers, passed upon the m: ter’s report, confirmed the same, and ordered that the pla tiff forthwith pay all the costs, including a fee of $50 for 1 lobby, the master. The master did not submit to the judge, n chambers, at this time, the testimony upon which he found he facts in the case. When the court assembled at Purcell, he appellant moved the court to vacate the judgment enter-d in vacation at Ardmore, because the same was entered in acation, as stated in his first assignment of error above set orth.. It is conceded by counsel for the appellees that, if be order in question be considered a final judgment on the íerits of the case, it is void, for the reason that it appears ) have been entered in vacation. But counsel for appellees irther insist that the court’s refusal to vacate this order is umaterial, for the reason that the whole matter came up ?ain in open court at Purcell, and a final judgment was íere entered in the case. The judgment of the court in ication at Ardmore confirmed the master’s report in all rejects; and, the master having reported that the complainant as not entitled to the relief prayed for, this was a final dgment upon the merits, and, having been made in vaca-ra, it was void. Whether this error was cured by the sub-quent action of the court at Purcell will appear upon con-leration of the second assignment of error.

Master’s Report — Final Judgment.

In the court at Purcell the appellant filed a motion to quire the master to return the testimony taken by him, and >on which he had based his report and recommendations, to court; and he also filed exceptions to the master’s re->rt, and a motion to vacate the judgment of the court hered in vacation at Ardmore. The master undertook to mply with the motion to require him to supply the testi-ray, and filed in court what he certified was a substantial py of the testimony produced before him. The appellant ra submitted affidavits of the witnesses who testified before j master, and filed them in support of his exceptions to 3 master’s report, which affidavits contradicted the testi->ny as furnished by the master. The court overruled the motion to set aside the judgment rendered in vacation a Ardmore. The appellees then filed a motion that the mas ter’s report be confirmed, which motion was sustained To this action of the court the appellant excepted. Th appellees also moved that they have judgment in the cas< and filed the evidence taken before the master in support c their motion. The transcript contains this stateinen “Which said motion was opposed by the plaintiff by reaso of the affidavits of J. W. Hocker, Harris Simon, and! Spitzer, and introducing in evidence the notice attached t the original summons herein, all of which are fully set fort in bill of exceptions No. 2; which said motion is sustained b the court, and judgment given for the defendants; to whic action of the court the plaintiff excepted, and exception w£ in open court allowed. ” The affidavit of J. W. Hocker, 1 which reference is made, was to the effect that the only ma ter tried at the hearing before the master was the questic as to whether the plaintiff was entitled to the temporary r lief sought; that the testimony of the witnesses was n written down at the examination, but that the evidence r turned into court by the master was written out by the ma ter over four months after the taking of the same, from l memory, and without talking to the witnesses, or all them; that the statement of what the testimony was, : shown by the testimony returned, is not as affiant understo* the same to be; that affiant understood that the hearing t fore the master was not on the issues in the case, but only the matter of granting the temporary order of injunction a: appointing the receiver; that the hearing was not a fir trial; that affiant did not at the time intend, as counsel f appellant, to enter into a final trial, but simply to ascerfe whether or not the temporary relief should be granted. T affidavit of Harris Simon, referred to above, was to the efff that he was one of the witnesses who testified at the heari on the application for an injunction before the master ihancery, and that the testimony returned into court by the said master as having been given by him was not correct, md that he did not testily in substance as sot forth in said 'eport. Notwithstanding the affidavits submitted to the ¡ourt by the appellant in resisting the motion to enter judg-uent for the defendants, the motion was allowed, and final entered for the defendants below (the appellees in his case.) It is evident from all the facts in this case that the ourterredinenteringfinaljudgmentin this case; that the tes-inmoyupon which the same was based had been taken in apro-eeding for temporary injunction, and for the appointment f a receiver; that the real merits of the case had never been ivestigated; and that the case was not in a condition in rhich final judgment could be entered. The appellant was ntitled to a hearing upon his complaint in equity. Ho had rayed, in additien to his application for a restraining order ad for a receiver, ‘! that an accounting be had of the amount ae from plaintiff to defendant; that plaintiff be allowed to ay said amount, and redeem said stock of goods, fixtures, id stores, and such general and special relief as in equity id good conscience, in the premises, the court may deem fit id proper. ” No opportunity -was offered the appellant in ,e court below to introduce evidence and obtain the judg-ent of the court upon this prayer. The judgment for de-ndants on the merits of the case was an error which entitles e appellant to a reversal of the judgment and a new trial.

The third assignment, that the court erred in overrul-g plaintiff’s motion for a new trial, and the fourth assign-ent, that the proceeding in the case is wholly unknown to e law and our system of jurisprudence, do not require any rther consideration, in view of the opinion of the court sus-ining.the second assignment of error. The judgment of e court below is reversed, and the cause remanded, with structions to proceed in accordance with this opinion.

Clayton and Thomas, JJ., concur. Townsend, J., 1 not participate in the case.  