77 Ark. 299 | Ark. | 1905
(after stating the facts.) The court erred in its reasons stated for refusing to enter judgment against the defendant corporation. The allegations of the complaint were, in the absence of a motion to require them to be made more specific, sufficient to warrant a judgment thereon. The corporation is named in the complaint as one of the defendants, and it is therein alleged that the property “is now in the office of the Carpenter Investment Company, and is being illegally held by I. W. Ingram, C. M. Farmer and John G. Quertermous-, who are three out of four owners of the Carpenter Investment Company.” The corporation retained possession of the property by joining in the execution of a bond undertaking to perform the judgment of the court. If more specific allegations were to be required to the effect that the corporation was in possession of the property and wrongfully withholding the same from the plaintiff, the defect should have been met by a motion asking that the complaint be made more specific.
Tt does not follow, however, that the plaintiff was entitled to a judgment by default against the corporation. The answer filed by its codefendants tendered an issue which was a good defense to the action. They disclaimed any title in themselves, as individuals, but set up title and right of' possession in the corporation. Replevin is a possessory action, and the plaintiff in all such actions must recover, if at all, upon the strength of his own title, and not upqn the weakness of his adversary’s title. These defendants, in effect, while disclaiming any title in themselves as individuals, alleged that they held possession for the true owner, the Carpenter Investment Company. This was a good defense, and the answer inured to the benefit of the corporation, as it stated a defense common to all the defendants. Lowe v. Walker, ante p. 103; Fletcher v. Bank of Lonoke, 71 Ark. 1.
A trial should have been had upon the issue' thus tendered. But the refusal of the court to render judgment by default against one of the defendants was not a final judgment from which an appeal would lie, and the appeal taken by the plaintiff was premature. The action is still pending in the circuit court, and the appeal must be dismissed at the cost of appellant. Gates v. Solomon, 73 Ark. 8.
It is so ordered.
