Higgason v. Braswell

258 S.W. 983, 163 Ark. 348, 1924 Ark. LEXIS 236

• Court: Supreme Court of Arkansas
• Decided: March 3, 1924
• Status: Published

Opinion

Hart, J.,

(after stating the facts). The motion of the defendant to quash the judgment of the justice of the peace is based upon § 8640 of Crawford & Moses’ Digest, which states the requisites of an affidavit in replevin. The office of the affidavit and bond in a replevin suit is to obtain an order of delivery. This court has held that, before an order of delivery can issue for the immediate possession of the property in advance of the trial of the rights of property, the affidavit contemplated by § 8640 of Crawford & Moses’ Digest must be filed.'

The court has further held that the failure to file such affidavit before the issuance of the order of delivery for the immediate possession of the property is ground for quashing the writ, but that it is not a prerequisite to the jurisdiction of the court to settle the rights of property without a change of possession. Schattler v. Heisman, 85 Ark. 73. In that case the court further held that the circuit court could proceed to try the rights to the possession of the property involved without the possession being changed.

Under this decision, the defendant might have moved to quash the order of delivery because a defective affidavit had been filed. The requirements of the statute should be folMwed, in order to obtain a valid order of delivery; but they are not in the nature of jurisdictional facts calling for a dismissal of the complaint, and the circuit court erred in so holding.

It is claimed that the affidavit in the case at bar is defective because it fails to state the value of the property taken in the action, and because it failed to recite that the property was not taken under a judgment or execution. In addition to the fact that this Was not a ground to quash the judgment, it may be said that the affidavit shows, inferentially at least, the value of the property, and that the property was not taken under a judgment or execution. The affidavit alleges that the .cotton was not taken as a tax or fine against the plaintiff, but was merely stored for safekeeping, subject to his command at any time. This is equivalent to saying that the cotton was not taken under any order or judgment of a court against him, or seized under execution. The allegation that it was stored for safekeeping is equivalent to an allegation that the ownership of the property was in the plaintiff, and that he was entitled to the immediate possession of it.

The affidavit contains another allegation that the plaintiff believes he ought to recover the two bales of cotton from the defendant, or $200 for debt. This, taken in connection with the allegation that the plaintiff had stored the cotton for safekeeping with the defendant, is equivalent to an allegation that its value was $200. He asked to recover the cotton, or $200 debt. This, coupled with the allegation that the cotton belonged to him, shows, inferentially at least, that the plaintiff valued the cotton at $200.

It is also claimed that the affidavit was fatally defective because it did not state that the plaintiff’s cause of action accrued within one year

*. The effect of replevin being to change possession of the property, where an immediate order of delivery is obtained, the Legislature has required the plaintiff to file an affidavit that his cause of action had accrued within a year, in order to rebut the apparent right of the defendant arising from the length of possession. Payne v. Burton, 10 Ark. 53.

But, as we have already seen, the failure of the affidavit to state this fact is not ground to abate the suit, but is only ground to quash the order of delivery. In this connection it may be stated that the plaintiff ashed leave to amend the affidavit in order to supply the alleged defects in it, and his request should have been allowed by the circuit court. The case was tried de novo in that court. The amendment ashed did not change the nature of the claim of the plaintiff, nor was it inconsistent with his original complaint in the justice court. Hence the circuit eourt should have permitted the amendment requested by the plaintiff, and proceeded to try the case de novo. Hanf v. Ford, 37 Arh. 544, and Strode v. Holland, 150 Arh. 122.

It follows from what we have said that the court erred in quashing the judgment of the justice of the peace, and for that error the judgment must be reversed, and the cause will be remanded for further proceedings according to law and in accordance with this opinion.'

Section 8640 of Crawford & Moses’ Digest contains an error. The period of limitation is three years. See Acts 1887, p. 87, and § 6950 of Crawford & Moses’ Digest. (Reporter).