Lawhon v. Crow

• Citation: 122 S.W. 999
• Parties: LAWHON v. CROW.
• Decision Date: 22 November 1909
• Court: Supreme Court of Arkansas

122 S.W. 999

LAWHON v. CROW.

Supreme Court of Arkansas.

November 22, 1909.

Appeal from Circuit Court, Saline County; W. H. Evans, Judge.

Action by W. J. Lawhon against S. F. Crow. There was a directed verdict for defendant, and plaintiff appeals. Affirmed.

The suit at bar was first instituted by the appellant before a justice of the peace of Saline county to recover from the appellee a mule and two bales of cotton, which he had mortgaged to appellant to secure an open account for supplies advanced to him with which to make his crop. At each time appellee bought supplies of appellant, he was furnished with an itemized list of each purchase and its price. Before suit was instituted under the mortgage given by appellee to appellant, the appellee was served at three different times with a sworn statement of his account, showing the total balance due appellant. It is now admitted that these statements were not itemized, and it is further agreed that there were no credits due appellee, and that the amount of the account, so sworn to, was correct. The case was taken from the jury because of the appellant's failure to itemize his account, as required by section 5415 of Kirby's Digest.

Downie, Rouse & Streepey, for appellant. J. S. Abercrombie and W. R. Donham, for appellee.

WOOD, J. (after stating the facts as above).

Section 5415 of Kirby's Digest is as follows: "Before any mortgagee, trustee or other person shall proceed to foreclose any mortgage, deed of trust, 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." The statute is mandatory. Compliance with its terms is a prerequisite to the maintenance of a suit to replevin mortgaged property. This has already been practically decided by this court in Atkinson v. Burt, 65 Ark. 316, 53 S. W. 404, where we held that failing to furnish a verified statement might have been pleaded to a suit to foreclose or to replevin the property. Where a failure to comply with the statute may be pleaded as a defense, necessarily the statute is mandatory.

The purpose of the statute, as declared in Perry County Bank v. Rankin, 73 Ark. 589, 84 S. W. 725, 86 S. W. 279, is "to give the mortgagor an opportunity before suit to pay the debt" and to settle any controversy over any items that might be in dispute...