Burnham-Hanna-Munger Dry Goods Co. v. Hill, No. 1483

No. 1483 | N.M. | Nov 7, 1912

OPINION OP THE COURT.

ROBERTS, C. J.

Appellant instituted this action in the court below in replevin, under article 13, of chap.- 107 of the Session Laws of 1907, to recover certain goods and chattels, by filing with the clerk of the District Court of Torrance County an affidavit in replevin and a bond, conditioned as required by law. A writ of replevin was issued and duly executed by the sheriff, and a summons was issued and served upon the defendants, and return made. No formal complaint was filed, unless it can be held that the affidavit performed both the functions of a complaint and affidavit. Subsequently a trustee in bankruptcy was appointed for the defendant partnership, and he moved to quash the writ of replevin and the levy thereunder, because at the time of its issuance no complaint had been filed, and therefore no action was pending. Other facts appear in the record, upon which error is assigned, but our conclusions in regard to the quashing of the writ render it unnecessary for us to pass upon the additional questions, all of which arose subsequent to and were dependent upon the quashing of the writ. ' • •

Sub-sec. 17 of sec. 2685, C. L. 1897, provides that “civil actions in the courts of the Territory are commenced by filing a complaint.” And sub-section 232 of chap. 107, S. L. 1907, reads as follows: “Before the writ of replevin shall be issued, the plaintiff, or some credible person, in his stead, shall file in the office of the clerk of the District Court an affidavit alleging that the plaintiff is lawfully entitled to the possession of the property mentioned in the complaint, that the same was wrongfully taken, or wrongfully detained by the defendant, and that the right of action accrued within one year.” The affidavit, filed in the case, contains the names of the parties, designating them as plaintiff and defendant, the venue, described the goods claimed, and alleged that the plaintiff was legally entitled to their possession; that the property was unlawfully withheld from the plaintiffs and that the right of action originated within one year. The affidavit was sworn to, before the clerk of the District Court, and filed.

Appellants contend that the filing of a formal complaint, separate and apart from the affidavit is not required; that the affidavit and complaint may both be included in one pleading, if the pleading contains all the requisite allegations of both a complaint and an affidavit and all the facts required to be set forth in each, are incorporated ■ in the paper filed, and it is verified as required by law as an affidavit.

1 We have not been favored with a brief on the part of appellees and have been compelled to pursue our own research, and. can see no valid reason why the contention of appellants is not sound. While the better practice is to file both a complaint and affidavit, the statute does not in terms require it, and we do not believe any meritorious objection can be advanced to the incorporation of both in one pleading. Sub-sec. 96, C. L. 1897, provides ’that it shall be the duty of the court, in construing the provisions of the law relative to pleading to “distinguish between form and substance.” The contention raised by appellee, in the lower court, by his motion to quash the writ of replevin, appears to us to have been based solely 'upon form and technicality and devoid of merit. The affidavit filed in the cause contained all the essential allegations of a complaint, and likewise of an affidavit in replevin.

In the case of Bobilya v. Priddy, 68 Ohio State R. 373, in an action of replevin, the affidavit and complaint wore both incorporated in the same pleading, as in the case now before the court. There a motion was made to set aside the writ because no separate affidavit was filed. The motion was overruled by the lower court, and on appeal the action of the court was sustained, the court using the following language: “There was no error in the ruling of the court. While under section 5815, Eevised Statutes, an' affidavit is required in order to warrant the issuing of a writ of replevin, there is nothing requiring such affidavit to be separate and apart from the petition. While good practice requires the petition and affidavit in a replevin case to be separate, so as to allow questions as to either to be made without “reference to the other, it is not error to combine both in one, unless it appears that so doing causes material prejudice to the defendant. No such prejudice .appears in this case.” This we believe to be a correct statement of the rule, and we find it fully supported by the authorities.

See Scott v. Vulcan Iron Works Co. (Okla.) 122 P. 186" date_filed="1911-07-11" court="Okla." case_name="Scott v. Vulcan Iron Works Co.">122 Pac. 186, where the affidavit filed was practically the same as the one filed in this case. Also see Louisville etc. Ry. Co. v. Payne, 103 Ind. 183" date_filed="1885-10-07" court="Ind." case_name="Louisville, Evansville & St. Louis Railway Co. v. Payne">103 Ind. 183; Cox v. Albert, 78 Ind. 241" date_filed="1881-11-15" court="Ind." case_name="Cox v. Albert">78 Ind. 241; Dunn v. Crocker, 22 Ind. 324" date_filed="1864-05-15" court="Ind." case_name="Dunn v. Crocker">22 Ind. 324; Hanner v. Bailey, 30 Ark. 681" date_filed="1875-11-15" court="Ark." case_name="Hanner v. Bailey">30 Ark. 681; Lewis v. Connelly, 29 Neb. 222" date_filed="1890-03-26" court="Neb." case_name="Lewis v. Connolly">29 Neb. 222; Harris v. Castleberry (Ind T.) 64 S.W. 541" date_filed="1901-10-05" court="Ct. App. Ind. Terr." case_name="Harris v. Castleberry">64 S. W. 541; Cobbey on Replevin (2nd ed.) sec. 586.

2 It is true no claim for damage was made for the detention of the goods, but this was a matter the plaintiff could waive; likewise the complaint contained no prayer for relief, but under code pleadings the prayer for relief forms no part of the statement of the cause of action, 31 Cyc. 100, and it has been held that, where-there is only one relief to which plaintiff can be entitled, the omission of a prayer for judgment must be disregarded. Sannoner v. Jacobson, 47 Ark. 31" date_filed="1885-11-15" court="Ark." case_name="Sannoner v. Jacobson & Co.">47 Ark. 31; see also Scott v. Vulcan. Iron Works, (Okla.) 122 Pac. 186.

Prom the foregoing it is manifest that the court erred in sustaining the motion to quash the writ of replevin. The-cause is therefore reversed with instructions to the lower-court to overrule the motion to quash the writ of replevin.