Murrell v. Henry

66 S.W. 647, 70 Ark. 161, 1902 Ark. LEXIS 23

Opinion

Battle, J.

Appellant’s cause of action was defectively stated in her complaint. Construing the complaint liberally, as our statutes provide, we think it may be said to state facts showing that appellant was entitled to be subrogated to the rights of the Ladies’ Building Association, Perpetual, under the note made by T. F. Henry, and under the mortgage executed by the appellees. She was secretary of the building association, and was bound by a bond in the sum of $10,000 to hold and save the building association harmless against all mistakes made by her in the payment of money. It appears from the complaint that while she was such secretary, and acting as such, she paid of the moneys of the association on the amount secured by the mortgage $45.45, by mistake, more than appellees, or either of them, were entitled to, and that this sum was secured by the mortgage; and that, in performanee of her bond, she paid to her principal the sum so paid by mistake. In paying the same she was no volunteer, but was acting in the discharge of an assumed obligation, and is clearly entitled to be subrogated to the rights of the building association under the note and mortgage, as to the amount and the interest thereon.

The defects in the complaint could have been reached by motion to make it more definite and certain, but not by demurrer. Bushey v. Reynolds, 31 Ark. 657; Bush v. Cella, 52 Ark. 378; Sweet v. Desha Lumber Company, 56 Ark. 629.

So much of the decree of the chancery court as sustained the demurrer of appellees to the complaint is therefore reversed, and the cause is remanded, with instructions of the court to overrule the demurrer, and for other proceedings. '