Morton v. Linton & Plant

HART, J., (after stating the facts). It is sought to uphold the judgment of the court below on the ground that appellant failed to file an abstract in accordance with the rules of this court. In the first place, it is claimed that the abstract does not show the pages of the transcript. It would be too technical to dismiss the appeal for this reason in this case. The judgment was upon the pleadings, and the pleadings are- set out in full in appellant’s abstract. Hence it is not necessary to give the pages in the transcript where each pleading might be found. Again it is suggested that appellant failed to comply with the rules because his abstract sets out the transcript in full. As we have just- seen, the judgment was upon the pleadings and it may be that appellant thought it necessary to set out the pleadings in full so that this court might more readily determine the issues raised by the pleadings. In such a case it is not a violation of the rule calling for the affirmance of the judgment to set out in full the pleadings which were the basis of the judgment of the court below. It is true appellant sets out two chattel mortgages in his abstract which purport to be the foundation of this lawsuit. These mortgages, however, are not part of the pleadings and have not been brought into the record by a bill of exceptions or otherwise. Hence they do not properly belong in the transcript and appellant should not have set them out in his abstract. This court will treat them as not a part of the transcript and will not dismiss the appeal because they are contained in the abstract. We now come to a discussion of the case on its merits. We are of the opinion that the court erred in sustaining the plaintiffs’ plea of res adjudicata. It will be observed that the complaint in this case is filed under the provisions of section 6869 of Kirby’s Digest. The purpose of the plaintiffs in filing it was to recover certain personal property described in the complaint under a chattel mortgage executed to them by the defendant for the purpose of foreclosing the mortgage. Subsequently to the commencement of this suit the defendant herein filed a suit in the circuit court against the plaintiffs herein in which he sought to obtain judgment against them for the unlawful conversion of the mortgaged property. Two grounds are set up in his complaint. He alleged that the mortgaged property described in the complaint in the present case amounted to $494.39, an amount exceeding the jurisdiction of the justice of the peace and that therefore the seizure of the property by the plaintiffs under their writ of replevin was without authority of law. The complaint also sets up that the plaintiffs had not filed a verified account of the amount due them under the mortgage at the time they instituted the present action. It is apparent from the complaint in the case brought in the circuit court by Morton against Linton & Plant, that the issue raised by the pleadings in the present case was not determined in that case. This is shown by the opinion in the former case reported in 136 Ark. 512 under the style of Morton v. Linton et al. The court-held upon the appeal in that case that, although the method of seizure of the mortgaged property by the mortgagees was unlawful because tbe value of tbe property exceeded the jurisdiction of tbe justice of tbe peace, or because a verified account was not filed by tbe mortgagees as required by tbe statute, still tbe possession of tbe mortgaged property by tbe mortgagees was not necessarily unlawful, because under tbe terms of tbe mortgage they might be entitled to tbe possession thereof. In other words, tbe court held that the mortgagor could not maintain a suit against tbe mortgagees for the unlawful conversion of tbe mortgaged property because tbe mortgagees bad unlawfully obtained possession of it in a replevin suit without first complying with tbe statutory requirement of furnishing an itemized account of bis indebtedness to tbe mortgagor; or by bringing bis suit before a justice of tbe peace for property tbe value of which exceeded tbe jurisdiction of tbe justice. We think tbe complaint and judgment in that case bring tbe present case within the rule announced in Livingston v. Pugsley, 124 Ark. 432. There as here tbe mortgagee brought suit in replevin against the mortgagor to recover tbe possession of certain personal property for tbe purpose of foreclosing a chattel mortgage. On tbe motion of the mortgagor tbe case was transferred to tbe chancery court and was there finally determined. The mortgagee subsequently in some way obtained possession of tbe mortgaged chattels and tbe mortgagor instituted an action at law against him to recover tbe possession of them. Tbe trial resulted in a verdict and judgment in favor of tbe mortgagor. Tbe mortgagor then interposed a plea of res adjudicaba, to the original suit brought by tbe mortgagee to foreclose tbe mortgage. Tbe lower court refused to sustain the plea and this court held that tbe decision of tbe chancellor was correct, for tbe reason that no issue was made in tbe law case as to tbe validity of the mortgage, but the decision turned entirely upon tbe question of the right of tbe mortgagee to foreclose tbe mortgage without having furnished an itemized account as required by tbe statute. Here we have tbe converse of tbe proposition but tbe principle is tbe same. Here the mortgagees brought suit in replevin under the statute to recover possession of the mortgaged property for the purpose of foreclosing the mortgage. Subsequently the mortgagor brought suit against the mortgagees for the unlawful conversion of the mortgaged property. It is true that both actions related to the mortgaged property, but there is no such identity of causes of action as to make the judgment in the suit for unlawful conversion a bar to the suit to foreclose. In both actions, the mortgagor'admits that he was indebted to the mortgagees and that the mortgage indebtedness was secured by a mortgage on the chattels in controversy. The dispute between them was as to the amount of the mortgage indebtedness. The complaint and judgment only in the suit by the mortgagor against the mortgagees for unlawful conversion appear in the record to support the plaintiffs’ plea of res adjudicaba. It is apparent from them that the mortgagor based his right to recover on the ground that the mortgagees were in the unlawful possession of the mortgaged property and that on this account he had a right to maintain a suit for its unlawful conversion. The circuit court in that case properly directed a verdict for the mortgagees for the reason that while the record showed that the mortgagees had not legally come into possession of the mortgaged property, there was nothing in the record to show that they were not entitled to the possession of it for the purpose of foreclosing their mortgage. For that reason the mortgagees were not guilty of the conversion of the mortgaged property and the mortgagor, was not entitled to recover judgment. The right of possession of the .mortgagees to the mortgaged property was the only issue made by the pleadings and determined by the court. It follows from the conclusion reached that the judgment in the former case is not a bar to the present action; for the same issues were not litigated in the two cases. It follows that the judgment must be reversed and the cause remanded for a new trial.