Moore v. McCloy

69 S.W. 311, 70 Ark. 505, 1902 Ark. LEXIS 102

• Court: Supreme Court of Arkansas
• Decided: June 21, 1902
• Status: Published

Opinion

Hughes, J.,

(after stating the facts.) The appellant did not set up his defense in the replevin suit, and there was nothing shown that would have prevented him from doing it. It was a legal defense, and there is no reason for suing in equity. He became the owner of the five bales of cotton by delivery to him by Craig, and nothing could have prevented him from pleading this in defense to the replevin suit. Under Sand. &. IP. Dig., § 5722, a party to an action at law must interpose all of his defenses, legal as well as equitable, and cannot let judgment go against him, and then go into equity and seek to enjoin the judgment and set up an equitable defense which he might- have made in the suit at law. Ward v. Derrick, 57 Ark. 500.

Affirmed.

Bunn, C. J., and Battle, J., not participating.