Corey v. Mercantile Insurance Co., of America
| Decision Date | 15 May 1944 |
| Docket Number | 4-7345 |
| Citation | 180 S.W.2d 570,207 Ark. 284 |
| Parties | Corey v. The Mercantile Insurance Company of America |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Circuit Court, Chickasawba District; Walter Killough, Special Judge.
Affirmed.
Claude F. Cooper, Frank C. Douglas and T. J. Crowder, for appellant.
Verne McMillen, 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 judicata of the present action brought by appellant. See Corey v. The Mercantile Ins. Co. of America, 205 Ark. 546, 169 S.W.2d 655. In that case Mrs. Corey sued appellant 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 pleaded the defenses of res judicata, 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, subdivision 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 § 1194 of Crawford & 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 subsection 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 the words, "In addition to the general denial above provided for."
Appellant was a party defendant to appellee's cross-complaint in the former action. He supported his wife's right to reform and recover on the same policy here involved. He disputed the...
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...of any new matters constituting a defense, counterclaim or set-off. Pope's Digest, Laws of Arkansas, Sec. 1416. In Corey v. Mercantile Ins. Co., 207 Ark. 284, 180 S.W.2d 570, the Supreme Court of Arkansas in referring to Section 1416, Pope's Digest, among other things "Appellant contends th......
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...the present case, the appellees cite, inter alia: Morgan v. Rankin, 197 Ark. 119, 122 S.W.2d 555, 119 A.L.R. 1466; Corey v. Mercantile Ins. Co., 207 Ark. 284, 180 S.W.2d 570; Robinson v. Mo. Pac. Transp. Co., 192 Ark. 593, 93 S.W.2d 311; Ozan Lumber Co. v. Tidwell, 213 Ark. 751, 212 S.W.2d ......
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Corey v. Mercantile Ins. Co.
...180 S.W.2d 570 ... MERCANTILE INS. CO. OF AMERICA ... Supreme Court of Arkansas ... May 15, 1944 ... Rehearing Denied June 19, 1944 ... Appeal from Circuit Court, Mississippi ty, 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 ... ...
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May v. Exxon Corp.
...order to determine if the counterclaim is compulsory. We have interpreted the section as mandatory. Corey v. The Mercantile Insurance Company of America, 207 Ark. 284, 180 S.W.2d 570 (1944). Failure to plead the counterclaim is res judicata. Olmstead v. Rosedale Bldg. & Supply, et al, 229 A......