Isabel v. General Motors Acceptance Corporation

• Decision Date: 12 October 1936
• Docket Number: 4-4368
• Parties: ISABEL v. GENERAL MOTORS ACCEPTANCE CORPORATION
• Court: Arkansas Supreme Court

96 S.W.2d 1106

192 Ark. 1125

ISABEL v. GENERAL MOTORS ACCEPTANCE CORPORATION

4-4368

Supreme Court of Arkansas

October 12, 1936

Appeal from Cross Circuit Court, First Division; Neil Killough Judge; affirmed.

Action by General Motors Acceptance Corporation against Irving M Isabel. From a default judgment defendants appealed.

Judgment affirmed.

John A. Fogleman and R. V. Wheeler, for appellant.

Dixon Williams & Edmondson, Walter N. Killough and Elton A. Rieves, Jr., for appellee.

OPINION

JOHNSON, C. J.

This appeal comes from a judgment of the Cross circuit court wherein the appellants failed to appear and make defense. The suit was predicated upon a title retaining contract of sale and purchase. The complaint did not allege compliance with § 7403 of Crawford & Moses' Digest, requiring a verified itemized statement of account to be delivered before the suit is filed and this is the first question presented for consideration on appeal.

The suit was in replevin and damages for the wrongful detention were alleged to be $ 50, but a recovery of $ 250 was permitted by the trial court upon a trial to a jury and this is the second error alleged.

It was not necessary for plaintiff to deliver to the original defendant a verified itemized statement of account prior to the filing of the suit as required by § 7403 of Crawford & Moses' Digest for the reason that said statute applies only to mortgagors, mortgagees and those occupying that status and does not apply to vendors in conditional sales contracts or their assignees. The statute reads as follows: "Before any mortgagee, trustee or other person shall proceed to foreclose any mortgage, deed of trust (of) or to replevy under such mortgage, deed of trust or other instrument, any personal property, such mortgagee, trustee or other person shall make and deliver to the mortgagor a verified statement of his account, showing each item, debit and credit, and the balance due. Provided, if the mortgagor disposes or attempts to dispose of any of the property mortgaged, or absconds or removes from the county, such statement shall not be necessary."

This section of the statutes is § 2 of act 99 of 1893. The title to this act provides: "An Act to Regulate the Execution and Foreclosure of Mortgages on Personal Property, etc."

It will be observed that vendors in conditional sales contracts are not mentioned in the body of the act nor in the title thereof. The title to the act which may be resorted to to ascertain the legislative intent in doubtful cases, Morrow v. Strait, 186 Ark. 384, 53 S.W.2d 857; Matthews v. Byrd, 187 Ark. 458, 60 S.W.2d 909, restricts the application of the act to "mortgages" and also the proviso of the act limits its application to "mortgagors" and "property mortgaged."

The...