155 Ark. 153 | Ark. | 1922
(after stating the facts). The undisputed evidence in the record shows that J. G. Galloway executed a valid mortgage on a Buick automobile to the H. A. White Auto Co. of Memphis, Tenn., to secure the balance of the purchase price thereof in the sum of $1,300, and that that sum was due and unpaid at the time the White Auto Co. was allowed to intervene in the present action.
There was also evidence to sustain the finding of the circuit court that Galloway had removed the mortgaged automobile from the State of Tennessee to the State of Arkansas, without the consent of the mortgagee. Under this state of the record the circuit court was right in holding that the mortgage lien of the White Auto Co. was superior to the attachment liens of the plaintiffs.
In F. E. Creelman Lbr. Co. v. Lesh, 73 Ark. 16, it is said that the authorities generally hold that a chattel mortgage given and duly recorded in one State will, by comity, be enforced in another State to which the mortgaged chattel lias been subsequently removed, even as against an innocent purchaser for value, where the mortgagee did not consent to its removal. This rule was reaffirmed in Vehicle Supply Co. v. McInturff, 120 Ark. 487.
In Snider v. Yates, 112 Tenn. 309, 64 L. R. A. 353, the Supreme Court of Tennessee held that a chattel mortgage given in another State on the property there situated, and recorded according to its laws, would not be enforced in Tennessee, as against an innocent purchaser for value, where the property was removed to Tennessee without the consent of the mortgagee and not recorded in Tennessee. But subsequently, in Newsum v. Hoffman, 137 S. W. 490, the Supreme Court of Tennessee receded from the views just expressed, and held that whether or not such mortgage would be enforced in Tennessee depended on whether it was removed there without the consent of the mortgagee.
The change in the holding was made to conform to what the court announced to be the weight -of authority on the question, and it will be noted that the holding in the latter case is in conformity with our own decisions on the question.
It is also insisted that the court should have sustained the motion of the plaintiffs, filed in the circuit court, to dismiss the intervention of the White Auto Co. for want of jurisdiction. This motion is based on the ground that the interplea of the White Auto Co. was not verified, as required by Crawford & Moses’ Digest, sec. 544.
The record shows that the White Auto Co. was allowed to intervene orally in the justice court, and that by consent of the parties, the plaintiffs and the White Auto Co. proceeded to try the issue of law and fact between them. This amounted to a waiver of a written interpl'ea or a verification of it under the statute. The court had jurisdiction of the parties and of the subject-matter of the lawsuit. -Their consent to try the case and their appearance in court for that purpose dispensed with the requirement of the statute both in regard to a written interplea and the verification of it. See Hill v. Imboden, 146 Ark. 99, and Burke v. Sharp, 88 Ark. 433.
It follows that the judgment must be affirmed.
