Climer v. Aylor

• Decision Date: 01 May 1916
• Docket Number: 369
• Citation: 185 S.W. 1097,123 Ark. 510
• Parties: CLIMER v. AYLOR
• Court: Arkansas Supreme Court

185 S.W. 1097

123 Ark. 510

CLIMER v. AYLOR

No. 369

Supreme Court of Arkansas

May 1, 1916

Appeal from Izard Circuit Court; J. B. Baker, Judge; reversed.

Judgment reversed and cause remanded.

Bledsoe & Ashley, for appellant.

1. The complaint was sufficient. Kirby's Digest, § 6854. No delivery was asked. The affidavit was no part of the complaint. 34 Ark. 111. The wrongful detention and such general or special property in plaintiff as entitles him to the immediate possession are the essential facts necessary to support replevin. Shipman on Common Law Pleading; 107, 34 Cyc. 1464-5. No particular form is necessary, 75 N.Y. 1. Ownership need not be alleged in express terms if words of equivalent import are used. 34 Cyc. 1469; 61 Mo.App. 445; 49 N. Y. Supreme Court 178.

2. The amended complaint cured all defects and contained all necessary allegations. Kirby's Digest, § 6854; 44 Ark. 308; 34 Cyc. 1489. Amendments in furtherance of justice should be allowed. 62 Kans. 128; Kirby's Digest, § 6143, 6147-8.

The appellee, pro se.

1. The complaint was not sufficient to give plaintiff a right of action in replevin. Kirby's Digest, § 6854. It contained none of the requisites. 35 Ark. 175; 73 Id. 586.

2. Nor was the amended complaint sufficient. Kirby's Digest § 6854; 35 Ark. 175; 73 Id. 589; 124 N.Y. 148; 77 Ark. 299; 93 Id. 272; 106 Id. 438; 34 Cyc. 1489; 85 Ark. 444. The affidavit is no part of the complaint, but if there be no statutory affidavit, the complaint must contain all the statutory requirements. Kirby's Digest, § 6854; 73 Ark. 589.

OPINION

WOOD, J.

Appellant instituted this suit against the appellee to recover the possession of a certain horse. His amended complaint is as follows: "Comes the plaintiff and states that he claims a certain horse in this action; that it is an iron gray horse, about three years old and about 14 1/2 hands high, and is worth about $ 130.00; and for the detention of said horse he believes that he ought to recover the sum of $ 25.00; that he is entitled to the immediate possession of said horse; that said horse is wrongfully detained by defendant, T. E. Aylor, and that according to the best knowledge, information and belief of plaintiff that said defendant detains said horse under false claim of being owner thereof; that said horse was not taken for tax or fine against plaintiff or under an order or judgment of court against his property and that his cause of action herein accrued within three years last past. The aforesaid property was taken under an execution sued out against W. R. Johnson by the aforesaid Tom Aylor and bought in at sale under said execution by said Tom Aylor."

The suit was begun in the justice court. The appellant filed therein the following affidavit:

"The plaintiff, Arthur Climer, states that he is entitled to immediate possession of the following described property, towit: (describing the horse) of which the defendant Tom Aylor has possession without right, and which he unlawfully detains from plaintiff. Wherefore, plaintiff prays judgment for the recovery of said property and for twenty-five dollars damages for detention thereof and all injuries thereto and other relief."

The judgment recites: "That on motion of the defendant the amended complaint filed in the action is struck from the files and the cause is dismissed," to which ruling the plaintiff duly excepted and prayed and was granted an appeal.

Evidently the court treated the motion to strike as a general demurrer to the complaint, and the only question is, does the complaint state a cause of action?

All forms of civil actions are abolished under our code. Kirby's Digest, § 5980. Our replevin law, Kirby's Digest, Chap. 136, contains no requirements for the form of a complaint to recover the possession of personal property where the plaintiff does not ask for a delivery of the property at the commencement of the action or at any time before judgment, but it is only when the plaintiff desires the possession or delivery of the property prior to the judgment that he is required to file an affidavit in compliance with section 6854 of Kirby's Digest.

No formal written pleadings are required to be filed in a justice court. A short written statement of facts on which the action is founded is all that is necessary. Kirby's Digest, § 4565.

The pleading filed in the justice court did not purport to be an affidavit, but was designated as a complaint at law. It set up that the plaintiff was entitled to the immediate possession of the horse of which the defendant had possession without right and which he unlawfully detained from the plaintiff. Where there is a statement of the facts constituting the cause of action, whether the pleading be designated as an affidavit or a complaint, it is sufficient to give the court jurisdiction of the subject matter in replevin. See Hanner v. Bailey, 30 Ark. 681.

The allegation that the plaintiff was entitled to the immediate possession of the horse of which the defendant had possession without right and which he unlawfully detained from the plaintiff, with a prayer for the recovery of the horse and damages for the detention thereof, was a sufficient statement of the facts constituting a cause of action to give the justice court jurisdiction of the subject matter, and on appeal to the circuit court the appellant filed an amended complaint which states that plaintiff "claims a certain horse in this action;" that he was...