44 Ark. 375 | Ark. | 1884
Hall sued the railroad in replevin for two bales of cotton before a justice of the peace. There was a trial and judgment for the plaintiff. The justice made no record of the nature of the defense made by the railroad company, and in the Circuit Court, on appeal, in response to a rule on him to amend his record, he stated in writing that the railroad had filed no written answer but appeared on the trial day and denied the plaintiffs title and right of possession to the cotton, and laid claim to the property in its own right. He stated further that there was no answer to the affidavit for the order of delivery, but that the defendant went to trial on the evidence without such answer. In the Circuit Court the railroad filed an answer denying that plaintiff had title or was entitled to possession of the cotton, and alleged title in itself. The plaintiff moved to strike the answer from the files because, as was alleged, it set up defenses not pleaded before the justice; and the court granted the motion and ordered the answer stricken from the files. The plaintiff then moved for judgment against the defendant because there was no answer. The court thereupon affirmed the judgment of the justice, and without evidence entered the same judgment rendered by the justice.
It is apparent from the transcript of the justice’s record, that the defendant contested the plaintiffs right of recovery. It was not necessary that this should be done under a written answer in either court.
The justice neglected to note the substance of the defendant’s answer on his docket, but when called upon to amend his transcript made it appear that the same issues-were made before him as were tendered in the Circuit Court. The plaintiff had presented his case with the formality usual in the superior courts. He had filed a written complaint and a separate affidavit in replevin. The affidavit required no answer. (Donnelly v. Wheeler, 34 Ark., 111.) If there had been no answer at all in the justice’s court, the defendant could not be precluded from making defense to the action in the Circuit Court on appeal. The Circuit Court may permit amendments and allow new issues to be made, keeping clear of new causes of action and set-offs not presented in the justice’s court. Mans. Rev. St, secs. 4151, 1367; Hall v. Doyle, 35 Ark., 445; Chowning v. Barnett, 30 Ib., 560.
It was error in the Circuit Court to strike out the defendant’s answer and then treat the case as though the defendant were in default in prosecuting the appeal. There was no necessity for a written answer in the Circuit Court, and if none had been made the defendant was entitled to a trial de novo upon the issues made before the justice. It was error in the Circuit Court to affirm the judgment without a hearing. Hall v. Doyle, sup.; Touhy v. Rector, 26 Ark., 315; Mansf. Rev. St., sec. 4152.
The judgment is reversed and the case remanded for further proceedings.
