Higgason v. Braswell
| Decision Date | 03 March 1924 |
| Docket Number | 207 |
| Citation | 258 S.W. 983,163 Ark. 348 |
| Parties | HIGGASON v. BRASWELL |
| Court | Arkansas Supreme Court |
Appeal from Bradley Circuit Court; Turner Butler, Judge; reversed.
STATEMENT OF FACTS.
This is an action in replevin brought before O. F. Neal, a justice of the peace, by J. W. Higgason against Frank Braswell, for the recovery of two bales of cotton.
The complaint was filed on the 14th day of October, 1921, and an order of delivery was duly issued on the same day, returnable on the 29th day of October, 1921. The return on the order of delivery shows that it was served on the defendant, and the two bales of cotton described in the order were taken possession of by the sheriff and delivered to the plaintiff.
On the 29th day of October, 1921, the defendant filed a motion for a change of venue, which was granted, and the venue changed to J. D. McLeod, a justice of the peace of another township in Bradley County, Arkansas.
On the 2d day of November, 1921, the plaintiff and the defendant announced ready for trial, and the case was heard before a jury. The jury returned a verdict for the plaintiff for the two bales of cotton in controversy, and judgment was rendered upon the verdict by J. D. McLeod, J. P.
The defendant in due time filed his affidavit for appeal to the circuit court, which was granted.
In the circuit court the defendant filed a motion to quash the judgment of the justice of the peace, on the ground that there was no affidavit filed before the justice of the peace as required by the statute in replevin cases.
The circuit court then permitted the affidavit for the order of delivery, which was filed before O. F. Neal, J. P., to be supplied in the circuit court and filed as a part of the papers in the case.
The body of the affidavit, omitting the caption, is as follows "The plaintiff, J. W. Higgason, states that the claim in this action against the defendant, Frank Braswell, is for 2 B/C cotton of the weight of 500 lb. or 1,000 lb. total; the same was bought and paid for by the plaintiff; that it is a just claim; that he ought, as he believes, to recover thereon the 2 B/C cotton of the defendant of $ 200 debt dollars and ($ 50); that he is the owner of 2 B/C cotton, and is entitled to the immediate possession of the cotton; that he is the owner, and is wrongfully detained by the defendant Braswell that, according to the best knowledge, information and belief of plaintiff, said defendant detains said cotton wrongfully of him the owner thereof; said cotton was not taken for tax or fine against him, but was merely stored for safekeeping subject to his command at any time.
"Wherefore he__pray__an order of delivery and that he have judgment for the sum aforesaid, with interest, also for costs of suit, and for other proper relief."
The affidavit was signed by J. W. Higgason, and sworn to before O. F. Neal, J. P.
The docket of O. F. Neal also showed that the case was transferred to J. W. McLeod, J. P., but, through some mistake, the affidavit was not transmitted to that court with the other papers in the case. The defendant then filed a motion to quash the judgment on the following grounds:
The plaintiff filed a response to the motion, in which he stated that the affidavit was in substantial compliance with the statute, and asked to be permitted to amend the same by inserting the allegations claimed to have been left out. The circuit court overruled the motion of the plaintiff to amend the affidavit, and sustained the motion of the defendant to quash the judgment rendered in the justice of the peace court.
Judgment was rendered accordingly in the circuit court, and the plaintiff has duly appealed to this court.
Judgment reversed, and cause remanded.
Bradham & Purkins, for appellant.
The affidavit was in substantial compliance with the statute, and was sufficient. Section 8640, C. & M. Digest; 44 Ark. 308; 85 Ark. 73; 111 Ark. 29; 33 Ark. 475; 34 Cyc. 1428; 114 Mich. 260; 37 Mich. 354; 71 N.W. 305; 22 Kan. 122; 119 Mich. 196; 32 Minn. 492. An irregularity in an affidavit upon which a writ of replevin is obtained does not invalidate the writ. 56 A. S. R. 736; 76 A. S. R. 892; 94 Ark. 384; 140 A. S. R. 121. The court erred in refusing to allow plaintiff to amend his affidavit. 68 Ark. 180; 37 Ark. 549; 44 Ark. 309; 46 Ark. 259; 44 Ark. 375.
Clary & Ball, for appellee.
The affidavit was fatally defective in failing to allege the statutory requirements. Section 8640, C. & M. Digest; 136 Ark. 512. The failure to state the value of the property was fatal, and the justice of the peace had no jurisdiction. 111 Ark. 29; 94 Ark. 384; 10 Ark. 313; 6 Ark. 41; 43 Ark. 107; 61 Ark. 33.
OPINIONHART, J., (after stating the facts).
The motion of the defendant to quash the judgment of the justice of the peace is based upon § 8640 of Crawford & Moses' Digest, which states the requisites of an affidavit in replevin. The office of the affidavit and bond in a replevin suit is to obtain an order of delivery. This court has held that, before an order of delivery can issue for the immediate possession of the property in advance of the trial of the rights of property, the affidavit contemplated by § 8640 of Crawford & Moses' Digest must be filed.
The court has further held that the failure to file such affidavit before the issuance of the order of delivery for the immediate possession of the property is ground for quashing the writ, but that it is not a prerequisite to the jurisdiction of the court to settle the rights of property without a change of possession. Schattler v. Heisman, 85 Ark. 73, 107 S.W. 196. In that case the court further held that the circuit court could proceed to try the rights to the possession of the property involved without the possession being changed.
Under this decision, the defendant might have moved to quash the order of delivery because a defective affidavit had been filed. The requirements of the statute should be followed, in order to obtain a valid order of delivery; but they are not in the nature of jurisdictional facts calling for a dismissal of the complaint, and the circuit court erred in...
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