County which are embraced in appellee district, and the present action is one instituted in the chancery court of Lincoln County by the commissioners of appellee district against appellant to enjoin the commissioners of the latter district from extending the whole of the assessments against the lands in Lincoln County. The prayer of the complaint is that appellant district "and its board of commissioners be restrained from extending for assessment and collection more than one-half of the benefits they had assessed against the lands."

Counsel for appellant appeared in the action and filed a motion to quash the service of process and dismiss the action on the ground that the action was improperly instituted in Lincoln County, whereas the venue was properly in Desha County. The court overruled the motion, and appellant filed an answer in the action, but preserved its objection to the institution of the action in the wrong county. Final decree was rendered in favor of appellee in accordance with the prayer of its complaint, and an appeal has been duly prosecuted to this court.

We are of the opinion that under the statutes of this State the venue in this action was in Desha County, and that the court erred in refusing to sustain appellant's motion to quash the service and dismiss the action.

The special statute creating appellant district contains the following provision:

"The said commissioners and their successors in office shall compose a body corporate for the purpose of this act under the name and style of "Arkansas-Louisiana Highway Improvement District," and by this name may contract, and sue and be sued. The domicile of the corporation shall be in McGehee, in Desha County, and all suits against it shall be by service on one of the commissioners in that county."

The present action is, in its general nature, not local but transitory. It does not fall within the definitions of local actions found in either of the four subdivisions of section 6060 of Kirby's Digest. The action does not relate to the recovery of real estate, or an interest therein,

nor for the sale of real estate under a mortgage or other lien, or for an injury to real estate. It is merely a controversy between the two districts with respect to funds to be raised by assessments on certain real property, and does not constitute the kind of action mentioned in the section of the statute referred to above. The special statute creating the district, however, fixes the venue in the county of the domicile of the defendant.

The suit having been brought in the wrong county, it follows that the same should have been dismissed. The decree is, therefore, reversed and the cause remanded with directions to the chancery court to dismiss the action.

1.

2.

EARL V. ELLISON.

Opinion delivered March 10, 1919.

ACTION-MISJOINDER OF CAUSES.-Where several parties joined as plaintiffs, but in separate counts, alleging that defendant at the same time, for the same price and under identical contracts, sold oats warranted to be Burt oats and to germinate, when they were not Burt oats and would not germinate, it was not error to overrule a demurrer for misjoinder and a motion to require plaintiffs to elect to dismiss as to all of the plaintiffs except one, since the court, under Acts 1905, p. 798, might have consolidated the actions if they had been brought separately.

PLEADING NECESSITY OF PROOF-DAMAGES.-In view of Kirby's Dig., § 6137, providing that "allegations of value or of amount of damage shall not be considered as true by the failure to controvert them,” it was error to render judgment for plaintiffs in a suit for damages arising from the sales of worthless seed, on their verified allegations as to the amount of damages without proof thereof.

Appeal from Conway Circuit Court; A. B. Priddy, Judge; reversed.

STATEMENT OF FACTS.

Seventeen parties, the appellees, as plaintiffs, instituted this action in the justice court against R. D. Earl, doing business under the firm name of Earl Brothers & Company, the defendant.

Each of the plaintiffs, in a separate count, set up that on or about the first day of February, 1917, he purchased from the defendant a certain quantity of Burt oats for seed. That he told the defendant that he wished the oats for seed; that the defendant "falsely and fraudulently stated to the plaintiff that he would guarantee said oats to be the genuine Burt oats and that they would germinate. That plaintiff, relying upon said guaranty, purchased said oats and planted same, but they would not germinate and were entirely worthless and were not the genuine Burt oats; that said representations were false and untrue." Each of the plaintiffs, in each of the separate counts, designated the number of bushels of oats purchased by him and the amount of damages he had sustained, by reason of the alleged false representation, on account of the worthless oats, and also the amount of damages he had sustained in loss of rent, time and expense in preparing the soil and sowing the oats; and prayed judgment for damages. All of the plaintiffs joined in a prayer for judgment for damages for the aggregate amount of the sums paid by each of them for the oats and also for the aggregate amount of the damages sustained by them for the loss of time, and expense in preparing the soil and planting the oats, and in the loss of rent.

The case was appealed to the circuit court. The defendant filed a special demurrer in which he set up that there was a misjoinder of parties plaintiff and a misjoinder of causes of action, and that the court was, therefore, without jurisdiction. The demurrer was overruled. The defendant then filed a motion to require the plaintiffs to elect as to each cause of action and as to which plaintiff should prosecute the suit, and that the cause of action as to all other plaintiffs be dismissed. The motion was overruled. The defendant elected to stand upon his demurrer and motion, and refused to plead further.

"Thereupon," as the record recites, "this cause coming on to be heard, same was submitted to the court upon the complaint of the plaintiffs, which was sworn to and

verified by the plaintiffs, and the court being well and sufficiently advised, doth find that the plaintiff, Ruff Ellison, is entitled to judgment against the defendant in the sum of $36.80."

Then follows consecutively a recital naming each of the other plaintiffs, and the amount of the judgment to which he was entitled, and a judgment in his favor for that sum. The recital concludes, "it is further ordered and adjudged that each of the above named plaintiffs have and recover of and from the defendants all their costs in this suit, laid out or expended, for which let execution issue."

The appellant duly excepted to the ruling of the court in overruling his demurrer to the complaint and his motion requiring the plaintiffs to elect and in rendering judgment against him, and from the judgment rendered prosecutes this appeal.

Calvin Sellers and W. P. Strait, for appellant.

1. The court erred in overruling the demurrer and the motion to require plaintiffs to elect. Plaintiffs were separate and distinct customers and each bought oats for planting purposes, and each was in no way interested in the other's purchase. There was clearly a misjoinder of separate parties and causes of action. Kirby's Digest, § § 6079-80-81-83, under our statute there could be no consolidation of these separate suits between different parties and for separate causes of action. 65 Ark. 215; 80 Id. 231; 74 Id. 54; 90 Id. 482; 5 Id. 651.

2. It was error to render judgment without hearing proof on the intervention of a jury. Art. 2, § 7, Const.; 32 Ark. 553; 56 Id. 391; 48 Id. 426; 57 Id. 583; 109 Id. 534.

2. Allegations of value or the amount of damages must be proven before a jury. 90 Ark. 158; 1 Ark. 144; 4 Id. 534, 574; 12 Id. 599; 5 Id. 640; 10 Id. 258; 29 Id. 373; 39 Id. 491; Kirby's Digest, § § 6137, 6240. It was at least the duty of the court to hear proof, supra.

Edward Gordon, for appellees.

1. There is no error. The questions argued by appellant were not raised in the court below and no objections were made below. The rulings of the court were not objected to, nor saved in the motion for new trial nor shown by a bill of exceptions, and all objections are thereby waived. 60 Ark. 250. See also 73 Id. 407; 85 Id. 326; Ib. 488; 91 Id. 43, 47; 108 Id. 224-6; 60 Id. 257; 15 How. 160.

2. There was no misjoinder of parties. Kirby & Castle's Digest, § 7254; Acts 1905, 798; 90 Ark. 483; 83 Id. 288; Ib. 255; 88 Id. 128. See also 84 Id. 556; 91 Id. 51; 86 Id. 130; 83 Id. 372; 117 Id. 71; 119 Id. 558.

WOOD, J., (after stating the facts). First. The court did not err in overruling the demurrer nor in overruling the motion to require the appellees to elect to dismiss the complaint as to all except one of the plaintiffs. Act 339 of the Acts of 1905, page 798, provides: "When causes of action of a like nature or relative to the same question are pending before any of the circuit or chancery courts of this State, the court may make such orders and rulings concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so."

The several causes of action in the single complaint in separate counts, in which each plaintiff is named, grew out of precisely the same character of contract entered into on the same day for the purchase of the same kind of oats and at the same price. The only difference in the several contracts being in the amount of oats purchased. While the difference in the quantity of oats purchased by each of the several plaintiffs and the difference in the loss of rent, time, and expense in preparing the soil and sowing the oats, necessarily caused a difference in the measure of damages for each of the several plaintiffs, nevertheless, there was such a similarity in the nature of