Strode v. Holland

233 S.W. 1073, 150 Ark. 122, 1921 Ark. LEXIS 327

• Court: Supreme Court of Arkansas
• Decided: October 10, 1921
• Status: Published

Opinion

Hart, J.

(after stating the facts). The original complaint stated that the plaintiff was the owner of the property, and his affidavit for replevin stated that he had a special ownership by virtue of a lien in writing. The defendant interposed a demurrer to the complaint which was sustained by the court. The plaintiff then filed an amended complaint in which he stated that he had a special ownership in the property by virtue of a lien in writing.

It is contended by counsel for the defendant that the amended complaint stated a new cause of action, or at least that the amended complaint was inconsistent with the original complaint.

We can not ag’ree with counsel in this contention. In Climer v. Aylor, 123 Ark. 510, the court held that a complaint in replevin was defective because it was not shown by the allegations whether the plaintiff claimed under a general or special ownership. The court said that the complaint was not wholly defective, and that the defect could have been reached by a special demurrer, in which case tne plaintiff could have amended his complaint to show whether his ownership was general or special, and, if special, to set forth the facts upon which his claim of special ownership was based.

In the instant case the plaintiff alleged a special ownership in the property by virtue of a lien in writing. If defendant wished the plaintiff to set forth, the facts more in detail upon which his claim of special ownership was based, he should have filed a motion to make the complaint more definite, instead of a motion to strike the amended complaint from the files. Wm. R. Moore Dry Goods Co. v. Ford, 146 Ark. 227.

The question of whether the defendant’s motion to transfer the case to equity should have been granted is pot raised by the appeal for the reason that the defendant obtained leave to withdraw his answer from the files of the court and thereby eliminated the question from the case. The case was heard before the court sitting as a jury. There was no bill of exceptions filed, and the judgment recites that the case was heard upon the pleading’s, the obligation in writing of the defendant, and the evidence of the plaintiff.

The judgment recites that this is a suit in replevin for certain specifically described personal property or the balance due under a' lien or mortgage. The judgment further recites that the plaintiff have judgment for the property which is specifically described, or the balance due under the mortgage.

There being no bill of exceptions, we can only review the judgment for errors manifest upon the face of it, and in doing so can only consider the recital of facts contained in the judgment upon which it is based. Baucum v. Waters, 125 Ark. 305; Sizer v. Midland Valley R. Co., 141 Ark. 369; and Carroll County v. Poynor, 142 Ark. 546.

It will be seen that the judgment recites that the replevin suit was under a mortgage of the property held by the plaintiff from the defendant. In the absence of a bill of exceptions, and in view of the recitation in the judgment that the case was heard upon the written obligation of the defendant and the evidence of the plaintiff, the presumption is that the evidence adduced at the trial sustained the finding of the circuit court and warranted the judgment rendered.

The holder of a chattel mortgage may, upon the mortgagor’s default, sue at law to recover the mortgaged chattel, or for its conversion, or he may sue in equity for the foreclosure of the lien which he has by virtue of the mortgage. Thornton v. Findley, 97 Ark. 432.

To reverse the judgment counsel for the defendant rely upon the case of the Southern Cotton Oil Co. v. East, 134 Ark. 404. In that case the defendant set up an answer which was exclusively cognizable in chancery, and the court held that he was entitled to have the’ issue determined by the chancery court, and for that reason the trial court erred in not' transferring the case to equity. As we have already seen, the defendant, by leave of the court, withdrew his answer from the files, and this action eliminated any alleged error in refusing to transfer to equity.

Moreover, the defense interposed by the defendant' in his answer was not exclusively cognizable in equity. He could have set-off at law as well as in equity that the plaintiff was only due a certain amount under the mortgage. Our statute authorizes proof of payment of. the mortgage indebtedness or a set-off for the purpose of determining whether or not the debt has been 'discharged in full, or, in ease of partial discharge, the amount of the balance due. Jones v. Blythe, 138 Ark. 81.

It follows that the judgment must be affirmed.