1. COURTS — U.S. Commissioners' Courts — Jurisdiction — Amount in Controversy — Joinder of Causes of Action. Under Mansf. Dig. section 4026 (Ind. T. Ann. St. 1899, section 2706), providing that justices of the peace, whose jurisdiction is exercised by United States commissioners in the Indian Territory, shall have concurrent jurisdiction with district courts in matters of contracts where the amount in controversy does not exceed the sum of $300, exclusive of interest, and section 5014 (section 3219) declaring that several causes of action arising out of a contract direct or implied, may be united in the same complaint where each affects all the parties to the action — Held, in a commissioner's court (section 4034 [section 2714]) a party may sue and join in as many causes of action as he may have against the same defendants in the same complaint, where each separate cause of action is within $300.
2. SAME — Judgment — Consolidation of Sums. The plaintiff may take judgment on each cause of action and consolidate the several sums into one judgment.
3. JUDGMENT — Construction — Ambiguity — Reference to Record. If the entry of a judgment is so obscure or ambiguous as not to express the final determination of the court with sufficient accuracy, reference may be had to the pleadings and entire record when construing the judgment.
4. LIMITATION OF ACTIONS — Pleading Statute — Necessity. The bar of the statute of limitations is matter of defense; when the benefits of same are not taken by plea or answer, when not apparent from plaintiff's pleadings, or when the same is not shown in the complaint, by plea, answer, or demurrer, the same is waived.
5. JUDGMENT — Actions on — Limitation. Under Mansf. Dig. section 4103 (Ind. T. Ann. St. section 2783), limiting the time to five years within which execution may issue in commissioners' courts is no limitation to action on such judgment.
(Syllabus by the Court.)
WILLIAMS, C. J. (after stating the facts as above).
The plaintiff in error contends that the judgment rendered in the commissioner's court on the 31st day of January, 1898, was void for the reason that said court had no jurisdiction to render such a judgment. As will be observed from reading the complaint in said cause, the causes of action as stated, each of the same is within the jurisdictional amount of the commissioner's court, but judgment is asked and rendered in excess of the jurisdictional amount. By section 4026, Mansfield's Dig. (Ind. T. Ann. St. 1899, § 2706), commissioners in the Indian Territory shall have concurrent jurisdiction, arising out of contracts, express or implied, not to exceed the sum of $300, exclusive of interest. By section 5014, Mansfield's Dig. (Ind. T. Ann. St. 1899, § 3219), it is provided, referring to circuit courts, that "several causes of action may be united in the same complaint where each affects all the parties to the action. * * * Claim arising out of contracts express or implied." Also section 4034, Mansfield's Dig. (Ind. T. Ann. St. 1899, § 2714), provides:
"The parties to the action may be the same as in the circuit court, and all proceedings prescribed for that court, as far as the same are applicable and not herein changed, shall be pursued in justices' courts."
It would appear, therefore, that one may use and join as many causes of action as he may have against the same defendant so long as each separate cause of action is within the jurisdiction of the commissioner, and that said plaintiff may take judgment in each cause of action and consolidate the several sums into one judgment. Mannington v. Young et al. 35 Ark. 287; Hibbard v. Kirby, 38 Ark. 102; Harris v. Castleberry, 3 Ind. T. 576, 64 S.W. 542.
It is further contended on the part of plaintiff in error that said judgment is void because it reads, "with interest at ten per cent., and six per cent., with all costs of this suit." Unquestionably, the meaning of this phrase is obscure and ambiguous, but it is a well-settled rule that if the entry of a judgment is so obscure or ambiguous as not to express the final determination with sufficient accuracy reference should be had to the pleadings and entire record when construing the judgment. Fleener v. Driskill, 97 Ind. 27; Fowler v. Doyle et al., 16 Iowa, 534; Hofferbert v. Klinkhardt, 58 Ill. 450; Clay v. Hildebrand Bros., 34 Kan. 694, 9 P. 466; 1 Black on Judgments, 123. Under the rule just stated, by reference to the pleadings, it is evident that it was the intention that that portion of said judgment which was rendered upon the notes was to bear 10 per cent. interest, and that part upon the open account 6 per cent. interest.
The judgment was not barred by the statute of limitations. Hicks v. Brown, 38 Ark. 469; Mansfield's Dig. § 4487; Ind. T. Ann. St. 1899, § 2954. But defendant neither availed himself of such defense by pleas nor demurrer to that effect, which is necessary; and unless claimed it is waived. Thompson v. Parker, 68 Ala. 387; Wilson v. Anthony, 19 Ark. 16; Parker v. Berry, 12 Kan. 351; Miller v. Houston City St. R. Co., 55 Fed. 371, 5 C. C. A. 134.
If there was error in rendering the judgment or entering same by the United States commissioner, advantage cannot be taken of same in this action if the commissioner's court had jurisdiction of said cause. Badgett v. Jordon, 32 Ark. 155; Mansfield's Dig. §§ 3907, 3908 (Ind. T. Ann. St. 1899, §§ 2587, 2588).
We find no reversible error in the record. Judgment of the lower court is affirmed.
All the Justices concur.