Crumbley v. Guthrie

• Decision Date: 06 November 1944
• Docket Number: No. 4-7445.,4-7445.
• Citation: 183 S.W.2d 47
• Parties: CRUMBLEY v. GUTHRIE.
• Court: Arkansas Supreme Court

183 S.W.2d 47

CRUMBLEY v. GUTHRIE.

No. 4-7445.

Supreme Court of Arkansas.

November 6, 1944.

Appeal from Chancery Court, Madison County; F. O. Butt, Chancellor.

Action by R. S. Crumbley against Jewel Guthrie in replevin for possession of cattle impounded by defendant and in equity to enjoin sale of the cattle. From a judgment awarding defendant damages for trespass on her strawberry patch by the cattle, plaintiff appeals.

Affirmed.

John W. Nance, of Rogers, for appellant.

E. M. Fowler, of Huntsville and Sullins & Perkins, of Fayetteville, for appellee.

GRIFFIN SMITH, Chief Justice.

Jewel Guthrie owned 240 acres in Prairie Township, Madison County, where she resided and farmed. Crumbley, a resident and stockraiser of the same county, permitted his cattle to run at large and trespass upon Mrs. Guthrie's strawberry patch, resulting in damages for which $300 was awarded to compensate. Questions for decision on appeal, as expressed by counsel for Crumbley, are shown in the margin.¹

Mrs. Guthrie planted two and a half acres to strawberries in the spring of 1942. Trespass (recurring) began in March 1943. On two occasions the stock was driven out. Crumbley was informed of what had occurred, but did not respond to notice. Near the last of April when seven head of Crumbley's cattle entered the field, Mrs. Guthrie had them enclosed in her pasture, and in writing informed the owner they were being held pending payment of $100 damages and cost of impounding, "* * * under the law of Sec. 335 of the State Laws". This notice was ignored by Crumbley; whereupon, three appraisers were appointed by a Justice of the Peace to determine extent of the injury. Their report of April 28 was that "* * * damage done [the] strawberry patch [was] $100 for berries"; $1 per month per head for taking care of the stock; 70 cents for impounding them, and cost of appraisement, $6. This report was given Crumbley, who did not act until informed May 8th that the cattle would be publicly sold May 14. He then filed complaint in Circuit Court, denying Mrs. Guthrie's contention that the cattle were found "damage-feasant" on her land. The proceeding, in effect, was in replevin, accompanied by bond with affidavit for delivery.

Mrs. Guthrie's answer set out the facts just stated. It was expressly alleged that her farm was within a stock law district; that her acts in impounding were in compliance with Sec. 338 of Pope's Digest, and that her losses amounted to $300, etc.

In an amended complaint Crumbley asked that sale of the cattle be enjoined, and that the cause be transferred to Chancery. No issue is tendered in respect of the order of transfer.

(a) It is first contended the Court was in error when it tried the cause on its merit and awarded damages. If it be said that this argument is sound if the only issue had been the right to possession, answer is that replevin is an exclusive legal remedy. The writ might have been awarded Crumbley by Circuit Court had he been content to leave to that tribunal a determination of his rights. But he elected to invoke the aid of Chancery, where, if jurisdiction attached for any purpose, it would be retained for the purpose of decreeing full relief and to avoid a multiplicity of suits. Appellant does not question the Court's power to act, nor assert the principle that jurisdiction of subject matter cannot be conferred by consent. He merely appeals from action of a tribunal wherein affirmative aid was sought. It will be presumed that some asserted right not discussed in the appeal gave jurisdiction.

(b) In the decree the Chancellor said: "Prairie Township * * * is part of a stock law district wherein it is unlawful for stock to run at large." There was no proof to support this finding. On rehearing in Skiles v. State, 150 Ark. 300, 234 S.W. 721, 722, there was answer to the...