111 Ark. 29 | Ark. | 1914
(after stating the facts). From the allegations of the complaint it appears that appellant deposited with the appellee' a draft drawn by one, Piper, on his account or against his credit at Fargo, North Dakota, for the sum of ten thousand, two hundred dollars, and that the bank made the collection for appellant; but it does not appear from any allegation of the complaint that the collection was made by the actual receipt and transmission of any sum of money and no presumption can be indulged to supply that omission in view of the well known custom of banks to the contrary. The affidavit for the order of delivery does not undertake to describe the money further than as ‘ ‘ ten thousand, two hundred dollars, in money, currency of the United States.”
Replevin is not an action for the collection of debt, but upon the contrary is a possessory action for the recovery of specific personal property. Section 6853 of Kirby’s Digest reads as follows: “The plaintiff, in an action to recover the possession of specific personal property, may, at the commencement of the action, or at any time before judgment, claim the immediate delivery of the property, as herein provided.” And section 6854 states the requirements of the affidavit to obtain an order of delivery and reads in part as follows: “An order for the delivery of property to the plaintiff shall be made by the clerk when there is filed in his office an affidavit of the plaintiff, or of some one in his behalf, showing, “first, a particular description of the property claimed, ’ ’ etc.
In the case of Hawes v. Robinson, 44 Ark. 308, in the opinion by Cockrill, C. J., it was said: “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.” There is nothing in the affidavit or complaint or order of delivery in this case which would have indicated what specific money was to be taken by the sheriff.
The rule is well settled that replevin will not lie for money incapable of specific identification. (See 24 A. & E. Enc. of Law (2 ed.) 481, and cases there cited under note 9). Cobbey and other authors on the subject of replevin state the rule as follows: “Money is not the subject of an action of replevin, unless it is marked or designated in some manner so as to become specific as regards the power of identification, such as being in a bag or package.” Cobbey on Replevin (2 ed.) 72, and cases there cited.
As the complaint here contains no allegation showing that appellee had in its possession any specific money capable of identification, but shows only that it had collected for the appellant, a draft deposited by appellant in the usual course of business; no error was committed in sustaining the demurrer and the judgment of the court below is therefore affirmed.
