Dillinger v. Pickens

Mehaffy, J. On January 23, 1939, appellee, E. C. Pickens, instituted this action against the appellant, Tom Dillinger, to set aside a judgment against Pickens. He alleged that he had traded property with Dillinger,. and Dillinger had retained a lien on the property conveyed to Pickens, for $3,500; that he had had a conversation with Dillinger and thoroughly understood that when Dillinger foreclosed the mortgage, no deficiency judgment would be taken; that but for this understanding, he would have attended the sale and protected himself; but notwithstanding' this conversation, Dilling-er foreclosed the mortgage and took a deficiency judgment against Pickens for $1,800, Dillinger buying the land at the sale for $1,700. Dillinger filed a demurrer to the complaint which was overruled by the court, and an appeal prayed arid granted to the supreme court. A bill of exceptions was filed, but on January 8, 1940, it was stricken by order of this court. There being no bill of exceptions, we can only look to the record, which in this case is the complaint and demurrer, and unless the record shows error on • its face, it will be affirmed. In determining whether a demurrer to a complaint should be sustained, every allegation made in the complaint, together with every inference which is reasonably deducible therefrom, must be considered, and if when so considered there is a cause of action stated, the demurrer will be overruled. Texarkana Special School Dist. v. Ritchie Gro. Co., 183 Ark. 881, 39 S. W. 2d 289; White v. Williams, 187 Ark. 113, 59 S. W. 2d 23; Brown v. Ark. Cent. Power Co., 174 Ark. 177, 294 S. W. 709. There are many other cases decided by this court holding that in considering the sufficiency of complaint on demurrer, not only every allegation coritained in the complaint will be considered, but every reasonable inference deducible therefrom. The complaint did not- state facts very fully, but we think that the facts stated together with reasonable inferences deducible therefrom stated a cause of action, and the court did not err in overruling the demurrer. The decree -of the chancery court is affirmed.