McWhirter v. Penny

Wood, J., (after stating the facts.) The- court properly narrowed the issue under the facts of this, case to the question of who was entitled to the possession of the property. To maintain replevin, it was incumbent upon appellant to show that he was entitled to the immediate possession of the property. Carpenter v. Glass, 67 Ark. 135; Beebe v. DeBaun, 8 Ark. 510; Prater v. Frazer, 11 Ark. 249; Britt v. Aylett, 11 Ark. 475; Wallace v. Brown, 17 Ark. 449. There were no formal pleadings, but upon the affidavit and proof the only issue was the right to the immediate possession. The court submitted this upon a correct declaration of law. The question of the tender was not conclusive of this issue at all. It was only proper to be considered, in the absence of explanation, in the way of evidence as an admission, but the appellee’s intestate had explained that appellant was to. get the proceeds of the sale of the junk to the amount of six dollars per ton, under their contract, and this tender might have been considered as referable to a disposition upon the part of Hampton to pay appellant what was due him from the sale of the junk. It certainly did not conclusively determine who was entitled to the. possession of the property at the time of the institution of the suit. The court did not err in refusing to declare the law and find the facts as requested by appellant. Affirm the judgment.