dissenting. Set out hereafter are my reasons for dissenting to the majority opinion.
Very briefly stated, the issue here presented arose in the following manner. Appellee filed suit in the Circuit Court to recover $5,000.00, the face amount of the policy issued to him by the Washington Standard Life Insurance Company. Appellant, the insurance company, filed a motion to transfer to a court of equity, the essential portion of which reads as follows: “Said contract of insurance on its face does not clearly reflect the true agreement of the parties because of said scrivener’s error which is a mutual mistake between the parties(Emphasis supplied). Appellant thereupon prayed that the cause should be transferred to a court of equity for a'ref ormation of the insurance policy. To the above motion appellee filed a response in which it was stated in effect that if any mistake was made it was not a mutual mistake between the parties.
This court has held, and I take it the majority admit, that the mere allegation of a legal conclusion is non-effective. (See Mott v. First National Bank, 171 Ark. 7, 283 S. W. 3). Consequently, it must be conceded that the trial court was under no duty to transfer this cause of action to the Chancery Court merely on the allegation of the insurance company that a mutual mistake had been made.
It must follow, therefore, that the only way the insurance company could hope to have the case transferred was by introducing testimony showing that grounds for reformation existed, that is, that a mutual mistake was made. This fact was evidently recognized by the court and both parties because the parties entered into a Stipulation of Facts.
It is conceded by the majority, however, that the Stipulation reveals no mutual mistake was made. The last page of the majority opinion contains this statement: “... it is true that a mutual mistake has not been established by the quantum of proof necessary for a reformation”.
The available authorities seem to support the view I take. In the case of Haggart v. Ranney, 73 Ark. 344, 84 S. W. 703, the plaintiff filed a suit in Chancery Court alleging that they were the owners and in possession of said lands. Appellees filed a motion to transfer the cause to the law court alleging that they were in possession of the land. The Court, as in the case under consideration, took proof on the motion and made its finding thereon to the effect that plaintiffs were not in possession of the land and proceeded to transfer the cause to the Circuit Court. We can certainly take it for granted that if the trial court had found otherwise it would have ruled otherwise. It seems that the cited case is exactly in point with the case under consideration except that in the former the motion was made in the Chancery Court and in the latter it was made in the Circuit Court. I have never understood that the Chancery Court has wider jurisdiction to pass on motions than the Circuit Court has. On the propriety of taking-proof on a motion to transfer it was said in the cited case that “. . . it was necessary for proof to be taken and presented to the Court upon that issue ’ ’.
A similar situation arose and a like result was reached in the case of Wade v. Goza, 78 Ark. 7, 96 S. W. 388. There appellee made a motion in the Chancery Court to transfer to the law court on the ground that the appellant was not in possession of the land. Again proof was taken on the issue showing the allegation to be true and this Court approved the Chancery Court’s action in transferring it to the Circuit Court.
Any other view than the one I have tried to express would seem to lead to some ridiculous situations. As pointed out this Court has repeatedly said that it was proper to take testimony on a motion to transfer. It would be an idle and useless thing for the Court to take testimony and then not be bound to act upon what the testimony showed. It seems unreasonable for this Court to hold that a Chancery Court can hear testimony and decide whether to retain jurisdiction or transfer it to the Circuit Court while at the same time holding that the Circuit Court can hear testimony but has no choice but to grant a transfer. Such a process of reasoning seems to point to this anomalous situation: The Trial Judge was right in refusing to transfer solely on the allegations made in the Motion. He was right in hearing the testimony on the Motion. The testimony did not sustain the Motion, but he was powerless to deny the Motion.
I have read the holding in the Merchants Bank of Vandervoort v. Affholter, 140 Ark. 480, 215 S. W. 648, relied on by the majority, but I find nothing to support the conclusion reached. In that case appellee brought suit in the Circuit Court to recover a bond alleged to be of the value of $100.00. It is obvious, of course, that the Circuit Court would not have jurisdiction if the bond was not valued at $100.00. Appellant offered a demurrer but no proof was offered to show that the bond was worth less than $100.00. The trial court and this Court held that under the allegation of the complaint the Circuit Court had jurisdiction. Any relevancy of the cited case to the question under consideration entirely escapes me.
Judges McF addin and Johnson join in this dissent.