Adams v. Primmer

Kirby, J., (after stating the facts). If the first complaint filed by appellant was insufficient the court properly sustained a demurrer thereto. Having sustained the demurrer and noted appellant’s exceptions to its action in so doing, without any further order made or judgment rendered by the court, its action was not final, and the judgment could not be appealed from. Moody v. Ry. Co., 83 Ark. 371. After the demurrer was sustained, the appellant had the right to amend his complaint, and was properly given leave to do so by the court. Kirby’s Digest, § 6095. The court struck the amended complaint from the files upon said motion, holding that the matter had already been adjudicated by the sustaining of the demurrer at the former term, but erred in doing so. The amended complaint sufficiently alleges a cause of action in unlawful detainer, which is to determine the right to the immediate possession of lands and tenements, and not the title thereto. Dunlap v. Moose, 98 Ark. 235. The motion to strike will be treated as a demurrer, and, the complaint being sufficient, the court erred in sustaining it and dismissing plaintiff’s cause of action upon his declining to plead further. It seems from appellee’s brief that a writ of possession was issued upon the filing of the first complaint, and the possession of the premises delivered thereunder to appellant; but appellees did not set up as a defense any disclaimer of possession or claim of right thereto, but only objected to plaintiff’s right to proceed. ’ The complaint alleges that he acquired the title of J. W. Maddox, appellee’s lessor, to the lot in question and the right to the possession thereof under the trustee’s deed conveying same after a sale under the mortgage to satisfy the indebtedness secured thereby; that appellees were unlawfully detaining and holding the possession thereof, after the expiration of their lease, and paying rent from month to month thereon to said original lessor and refused to surrender possession after written notice given them as required by law. If these allegations be true, and the demurrer admits that they are, then appellant should have been given judgment for the possession of the lands and damages for the detention until the time they were delivered to him, and costs of the suit in any event. Appellees would be in no better position to dispute appellant’s title, having acquired possession of the premises under their lessor, to whose rights appellant succeeded, by the sale , and conveyance under the trust deed, than they would have been to dispute the title of their original lessor and landlord. Dunlap v. Moose, supra. For the error of the court indicated, the judgment is reversed, and the cause remanded, with directions to deny and overrule the motion to strike out and for further proceedings. It is so ordered.