Brown v. Peevey, 6 Ark. 37 (1845)

Jan. 1845 · Arkansas Supreme Court

6 Ark. 37

Brown vs. Peevey.

Error to the circuit court of Yell.

vWheie, in an action of replevin, the declaration is in the detinet, and the writ in the cepit and detinet, the objection, if available at all, must be presented by plea in abatement, and not by motion to quash the writ.

So with objections to the affidavit which the plaintiff, in replevin, is required by stat. ute to file in the clerk’s office, previous to the issuance of the writ.

Where the defendant has interposed one plea in abatement, which was sustained by the court, and the writ ordered to abate, upon which the case was brought into this court, reversed and remanded, he is precluded from interposing matter in abate, ment of the same order and character a second time.

Plea in abatement for irregularities apparent upon the face of the record, need not be sworn to.

Action of replevin, by Baker Brown against Dial M. Peevey, to the circuit court of Yell county, April tei’m, 1842.

Declaration charged that the defendant, on the 1st day of July, 1841, received of plaintiff a sorrel mare, to be re-delivered to plaintiff when requested; and that defendant, though often requested, refused to deliver, and unlawfully detained the mare from the plaintiff.

The plaintiff filed with his declaration, the following affidavit:

“State of Arkansas,)

Yell county. 5

“Baker Brown being duly sworn before me, James C. Gualt, clerk of Yell circuit, states on oath, that he the plaintiff in the above declaration is lawfully entitled to the property mentioned in the above declaration, and that the same is wrongfully detained from him by the defendant, and that, the plaintiff’s right of action has accrued in two years. his

BAKER BROWN, mark

“Sworn and subscribed to before me this 28th day of February, 1842. JAMES C. GUALT,

Cleric of Yell circuit court."

The clerk issued a writ, reciting that—

“Whereas Baker Brown complains that Dial M. Peevey of the .said county of Yell has wrongfully taken and unjustly detains one sorrel mare, &c.” — commanding &c., returnable &c.

At the return term, the defendant filed a plea in abatement to the writ, on the ground that the plaintiff did not pay the clerk’s fees for issuing the writ, &c. before it issued, which was sworn to by the cleric. To this plea the plaintiff demurred. The court .overruled the demurrer, and gave judgment for the defendant.

The plaintiff took the case to the Supreme Court, the judgment was reversed, and the cause sent back. See Brown vs. Peevey, 4 Ark. R. 442.

At the August term, 1843, the judgment of the Supreme Court was filed, and the cause proceeded.

The defendant filed a motion to quash the writ, stating a number of causes, in substance as follows:

1. The writ is for the wrongful taking and detention, when it should have been for the wrongful detention only.

2. The writ sets out a different cause of action from that set out in the declaration.

3. That the plaintiff did not file in the clerk’s office such an affidavit as the statute requires, before the writ issued.

4. That the affidavit which he did file was defective, informal, and insufficient.

The court sustained the motion to quash, and gave judgment for the defendant, which the plaintiff assigns as error, in this court.

BatsoN, and Blacicburn, for the'plaintiff.

PIempstead & Johnsojt, for defendant.

The writ in this case is part of the record and it appears that the plaint is for a detention merely, and the writ is both for a $epit and detention. This variance is fatal and the writ was properly quashed. The defect being apparent on the face of the record it was not necessary to plead the matter in abatement and swear to the same, the statute only intending to provide for pleas in abatement, which bring forward matters dehors the record. This court, in the case of Trap-nail vs. Hattier, ante 18, have decided that the remedy by Replevin for a detention is a mere statutory remedy, and must be strictly pursued in every particular. If this be true, the writ uniting two substantive causes of action, one of which was not embraced in the declaration, cannot be sustained. Chamberlain Exparte, 1 Sck. & Lef. 328.

Oldham, J.,

delivered the opinion of the court.

The objections interposed by the defendant’s motion to quash, if available at all, should have been presented by plea in abatement and hot by motion, as has been decided by this court upon several occasions. Stone vs. Bennett, 4 Ark. R. 71. Dyer vs. Hatch, 1 Ark. R. 339. Renner vs. Reed, 3 Ark. R. 339. The defendant having already interposed one plea in- abatement, which was sustained by the court and the writ ordered to abate, upon which the case was brought into this court, reversed and remanded, he was precluded from interposing matter in abatement of the same order and character a second time. The irregularity, if any exists, being apparent upon the record, it should still have been presented by plea in abatement, but in such case the plea need not be sworn to, ch. 1, sec. 1, Rev. Stat. The circuit court erroneously sustained the motion to quash; for which reason the judgment is reversed, this cause remanded and the defendant allowed to plead to the merits. Judgment reversed.