Hawes v. Robinson
Supreme Court of Arkansas
APPEAL from Phillips Circuit Court. Hon. E. T. Vauohan, Circuit Judge, on exchange of circuits. The affidavit was fatally defective; it contained no description of the property. Wells on Replevin, secs. 171 to 173; 664-5; 3 Blk. Com.,s. p. 145; 1 Ch. PL, 163; Gantt’s Digest, sec. 5035, sub. 1. Appellant being in possession and claiming adversely was prima facie the owner. The onus was on appellee, to overcome this presumption by preponderance of proof.
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APPEAL from Phillips Circuit Court. Hon. E. T. Vauohan, Circuit Judge, on exchange of circuits. The affidavit was fatally defective; it contained no description of the property. Wells on Replevin, secs. 171 to 173; 664-5; 3 Blk. Com.,s. p. 145; 1 Ch. PL, 163; Gantt’s Digest, sec. 5035, sub. 1. Appellant being in possession and claiming adversely was prima facie the owner. The onus was on appellee, to overcome this presumption by preponderance of proof. Wells on Repl., sec. 696, et seq. The defective affidavit was not cured by verdict. Appellant resisted the action on that ground. STATEMENT.…
1Opinion of the Court
OPINION.
Cockrill, C. J.
It is essential to a proper affidavit in replevin that it describe the property sued for in such manner as to afford the means of identifying it. In a justice of the peace’s court the first object of the affidavit is to procure the order of delivery. When that is accomplished it has performed its office as an affidavit and thereafter serves as a complaint. (Hanner v. Bailey, 30 Ark., 681.) After the order or writ is issued and served and there has been a defense to the action on the merits, and a verdict for the plaintiff, as in this case, it is too late to object that…
2Cases cited1 opinion
- Kirkpatrick v. CooperIllinois Supreme Court · 1875
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- Schattler v. HeismanSupreme Court of Arkansas · 1908
- Bowser Furniture Co. v. JohnsonSupreme Court of Arkansas · 1915
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