133 Ark. 173 | Ark. | 1918
This is an action instituted by appellant against appellee to recover damages for alleged conversion of certain personal property. It is alleged in the complaint that one' S. M. Bishop, the original owner of the property in controversy (two mares) mortgaged the same to appellant to secure a debt alleged to be due and still unpaid at the commencement of the action, and that Bishop had left the county and State, and that appellee had taken possession of the property and converted same to his own use. The value of the property in controversy is alleged to be $350.00 and the debt secured by the mortgage is stated to be $187.12, the prayer of the complaint being for recovery of the amount of the debt. The court sustained a demurrer to the complaint and on refusal of appellant to plead further rendered judgment dismissing the complaint. The ruling of the court in sustaining the demurrer is defended on the grounds that the complaint does not allege that the property was wrongfully taken by appellee or that there had been a demand for .the return of the property to appellant, or that the lien had been destroyed by the alleged conversion, or that any damage had been caused by a conversion of this particular property. The language of the complaint is in part as follows:
‘ ‘That heretofore the said S. M. Bishop has -left the county and State, and gone to parts unknown to the plaintiff, and the defendant herein has taken possession of the a.bove described property and converted same to his own use. That said property is reasonably worth the sum of $300.00 or $350.00, being in excess of the debt owing to this plaintiff, secured by a lien on said property.
'“That by reason of the fact that defendant has taken possession of said property, and converted same to his own nse, he is liable to the plaintiff for the amount of its debt against said property, towit: $187.12.”
The circuit court erred in sustaining the demurrer, and the judgment will, therefore, he reversed and the cause remanded with directions to overrule the demurrer, and it is so ordered.