85 Ark. 73 | Ark. | 1908
(after stating the facts.) The paper in this cause, purporting to be an affidavit, was filed with the justice of the peace on the day that the summons and order of delivery were issued. That is clear from the testimony. This paper, although not sworn to, was a sufficient complaint to give the court jurisdiction of. the subject-matter in replevin; and the court could proceed to try the right to the possession of the property involved without the possession being changed. Sections 6853-54, Kirby’s Digest; Hanner v. Bailey, 30 Ark. 681; Hawes v. Robinson, 44 Ark. 308; Eaton v. Langley, 65 Ark. 448, 450.
But, before an order of delivery can issue for the immediate possession of the property in advance' of the trial of the rights of property, an affidavit contemplated by section 6854, Kirby’s Digest, must be filed. A failure to file such affidavit before the issuance of the order of delivery for the immediate possession is ground for quashing the writ. But it is not a prerequisite to the jurisdiction of the court to settle the rights of property without a change of the possession. Eaton v. Langley, supra.
Moreover, the record recites, and the facts stated would warrant a finding, that the affidavit was made at the time the paper was filed with the justice, but that his jurat, through oversight, was not attached until later.
The court has jurisdiction, and the judgment is affirmed.