ON REHEARING.
Opinion delivered May 20, 1899.
Bunn, C. J.As the ground for this motion, it is stated that “this court erred in holding that the demurrer of the defendants to the jurisdiction of the lower court was properly sustained, and in affirming the judgment appealed from, whereas this court should have reversed the cause and directed the lower court to transfer the cause to the Pulaski circuit court, in accordance with Sandels & Hill’s Digest, § 6121.”
The appellant contends that this cause went off in the court below, on the ground of demurrer that an equity court was without jurisdiction, and that, under Sandels & Hill’s Digest, § 6121, the bill should not have been dismissed, but the court should have transferred the cause to the Pulaski circuit court.
This theory does not appear to have been presented, or even suggested, to the court below, nor was it contended for on appeal until the decree was affirmed; and then only by way of motion for new trial. It would have been but fair to the chancellor to suggest that, instead of an order of dismissal, on sustaining the demurrer to the complaint, he should have ordered the proper transfer of the case to be made, for the clause of said section 6121 peculiarly applicable to this case, as between the appellant and the two appellee companies, is in these words: “If any defendant in a cause in equity be in actual possession claiming adverse title, the cause as to him shall be transferred to the law docket” or to the law court, as plaintiff and appellant now contends for the first time in his motion for a new trial.
The complaint in this case was to quiet title, or rather, as expressed in the prayer of the complaint, “that the pretended title of the defendant, Tittle Rock Traction Railway Company, be annulled; that it be required to surrender its pretended deed for cancellation; that defendant be enjoined from hereafter asserting title to it (the lot),” and other relief. One paragraph of the complaint is in these words: “Complainant avers that possession of said property by him is inadequate relief; that if he should be restored to complete possession, the defendant would continue to publicly assert and claim title to said property by means of said colorable deed, and to prevent complainant from selling or disposing of it, and make such other use of it as he has a right to do.” Here he was laying his grounds for equitable relief, and claiming that he could get adequate relief only in equity. It is a little strange that at this late day he should recant and now ask us to compel the chancellor to do just what he (the plaintiff) would not permit him to do when before him.
To the original complaint a demurrer containing several causes was interposed, among them the non-joinder of parties, was sustained, with leave to plaintiff to amend, which he did by making the unknown heirs of John Burke parties defendant. This was done to establish title to himself, without which he had none.- This amended complaint was also demurred to on several grounds. In the meantime the plaintiff had voluntarily dismissed his complaint as to the unknown heirs of John Burke, and thus placed himself just where he started. The court sustained the last demurrer as he did the first, and dismissed the bill for want of equity, but without prejudice, so that plaintiff might bring his suit in the proper court, should he so desire. What else the chancellor could have done, in harmony with plaintiff’s prayer, is not seen. The chancellor might well have ordered the transfer, but as the plaintiff made no complaint, nor suggested any to us on appeal, he cannot complain at this time.