Perry County Bank v. Rankin

• Decision Date: 11 March 1905
• Citation: 86 S.W. 279,73 Ark. 593
• Parties: PERRY COUNTY BANK v. RANKIN
• Court: Arkansas Supreme Court

86 S.W. 279

73 Ark. 593

PERRY COUNTY BANK v. RANKIN

Supreme Court of Arkansas

March 11, 1905

Rehearing granted, judgment reversed and cause remanded for new trial.

OPINION

ON REREARING.

MCCULLOCH J.

The complaint in this cause alleges a special ownership in the plaintiff of the property sued for, and sets forth the facts upon which the claim of ownership is based, i. e., the chattel mortgage executed by the defendant and "that plaintiff is the owner and holder of said note and mortgage for value." The answer contains no denial of the execution of the note and mortgage, nor that the plaintiff is the owner and holder thereof, but it denies generally that plaintiff is the owner or entitled to the possession of the property, and pleads payment of the note secured by the mortgage. No objection was made at the trial to the introduction of the mortgage, as evidence of plaintiff's title to the property. Was the assignment of the mortgage an issue in the case?

In replevin suits, where plaintiff claims absolute title to the property sued for, it is only necessary to allege title generally and right of immediate possession, and the answer may be equally general in its denials; but where the plaintiff claims possession under a special ownership, he must set forth the facts upon which his claim of special ownership is based. Cobbey, Replevin, § 601; 18 Enc. Pl. & Pr., pp. 537, 538; Tuthill v. Skidmore, 124 N.Y. 148, 26 N.E. 348; Deyerle v. Hunt, 50 Mo.App. 541; Paxton v. Learn, 55 Neb 459, 75 N.W. 1096; Thompson Mfg. Co. v. Nicholls, 52 Neb. 312, 72 N.W. 217. Where the plaintiff alleges a special ownership in the property, the defendant must, in order to put in issue the allegations of such special ownership, deny specifically the allegations of fact upon which the claim of ownership is based. Kirby's Dig., § 6137; Cobbey, Replevin, §§ 746, 747; Sargent v. Chapman, 12 Colo.App. 529, 56 P. 194.

Counsel for appellee urge that, under the ruling of this court in Person v. Wright, 35 Ark. 169, it is not necessary for the complaint to contain a statement of facts constituting special ownership, nor for the answer to contain a specific denial thereof. The court in that case said "It was not necessary for plaintiffs to have shown in their complaint the means by which they acquired title. It would have sufficed to allege their ownership, general or special; their right to the possession; and that defendant...