Corey v. Mercantile Ins. Co.
| Decision Date | 15 May 1944 |
| Docket Number | No. 7345.,7345. |
| Parties | COREY v. MERCANTILE INS. CO. OF AMERICA. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Mississippi County, Chickasawba District; Walter Killough, Special Judge.
Action by C. S. Corey against the Mercantile Insurance Company of America on a fire insurance policy. Judgment for defendant, and plaintiff appeals.
Affirmed.
Claude F. Cooper and Frank C. Douglas, both of Blytheville, and T. J. Crowder, of Jonesboro, for appellant.
Verne McMillen, of Little Rock, for appellee.
The question here presented for decision is whether the former action of Mrs. C. S. Corey, wife of appellant, against appellee is res adjudicata of the present action brought by appellant. See Corey v. Mercantile Ins. Co. of America, 205 Ark. 546, 169 S.W.2d 655. In that case Mrs. Corey sued appellee in the Chancery Court to reform a policy of fire insurance issued in the name of her husband claiming title to the property and a mutual mistake in its issuance, and for judgment on the policy. Appellee had paid the mortgage on the property, took an assignment thereof from the mortgagee, denied the allegations of the complaint and, by way of cross-complaint against appellant and Mrs. Corey, sought a foreclosure of the mortgage, with a resultant decree in its favor, which was affirmed with a slight modification by this Court.
Thereafter appellant, the husband brought this action to recover on the policy alleging that he was the owner, and appellee plead the defense of res adjudicata, among others, in bar of the action. Trial resulted in a decree for appellee which sustained said plea. This appeal followed.
We think the trial court was correct in so holding. Section 1416 of Pope's Digest, sub-division 4, reads as follows:
Appellant contends that the word "must" in the first sentence above quoted should be construed to mean "may", but we do not think so. Act 54 of 1935, p. 124, amended Section 1194 of Crawford and Moses Digest, relating to the contents of an answer in civil suits. It provided what should constitute a "general denial" in sub-section 2, and in sub-section 4, it changed the word "may" to the word "must", and this was the only change in sub-section 4. We think the legislature meant something by this change, and that was to require a defendant to "set out in his answer as many grounds of defense counterclaim or set-off, whether legal or equitable, as he shall have." Otherwise there would have been no occasion to amend said sub-section, except it did add...
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