Sternberg v. Strong

Hart, J., (after stating the facts). It appears from the record that the original suit to foreclose the mortgage was brought by Strong, the mortgagee, in' Greene County, and that service of summons was had upon W. T. Ingram in that county. Summons was served upon S. S. Sternberg in Mississippi County. Counsel for appellant contends that, under the allegations of the complaint, there was no joint liability between Ingram and Sternberg, and that the case calls for the application of the rule announced in Lingo v. Swicord, 150 Ark. 384. We do not think that case has any application. There the court held that there was no liability at all on the part of appellant Lingo to Swicord. Here the facts are essentially different. According to the allegations of the complaint, Ingram, without paying the mortgage indebtedness, sold a part of the mortgaged property to Sternberg without the knowledge or consent of Strong, the mortgagee. This constituted a conversion of the property, and both Ingram and Sternberg were liable to Strong for a conversion of it. Merchants’ & Planters’ Bank v. Meyer, 56 Ark. 499; Winter v. Smith, 45 Ark. 549. Appellee filed an amendment to his complaint' oii the 5th day of April, 1921, and in this amendment he alleges that the several sales made by Ingram of the mortgaged property amounted to a conversion of said property by the parties respectively participating in such sales. Appellee alleges further that the property so sold had not been delivered to the receiver, and that the value of the two mules sold to and converted by S. S. Stern-berg was $400. Wherefore he prayed judgment against Sternberg for that amount. The decree in the present case was entered of record two days after- the amendment to the complaint was filed. It is the contention of appellant that the amendment to the complaint was in effect a new action against Stern-berg by Strong, and that the decree should be reversed because only two days elapsed between the filing of the amended complaint and the rendition of the decree. We do not think that the filing of the amendment to the complaint amounted to the institution of a new suit by Strong against Sternberg. The original complaint specifically alleged that W. T. Ingram, without the consent or knowledge of Strong, sold a part of the mortgaged property to S. S. Sternberg without paying' the mortgage indebtedness. The prayer of the complaint was that the defendants be required to deliver the property or its value, so respectively acquired by them, to the receiver. The rule is that, if the substantial facts which constitute a cause of action are stated in the complaint or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts aré imperfect, incomplete or defective, such insufficiency pertaining to the form rather than the substance, the proper correction is by a motion before the trial to make the averments more definite and certain by amendment. Bushey v. Reynolds, 31 Ark. 657; Rinehart & Gore v. Rowland, 139 Ark. 90; and Wm. R. Moore Dry Goods Co. v. Ford, 146 Ark. 227. The substance of the complaint against Sternberg was that he bought certain mortgaged property from Ingram before the mortgage indebtedness was paid, without the consent of the mortgagee, and thereby converted the mortgaged property to his own use. It is true that he should have stated in his original complaint that the property converted was two mules, and their value was $400. These defects, however, should have been corrected by a motion to malee the complaint more definite and certain in these respects. This Strong did by leave of the court, on his own motion. Hence the amendment to his complaint did not constitute the filing of a new cause of action against Sternberg, as contended by the latter, but it was properly an amendment to a complaint imperfectly or defectively stated in the first instance. Therefore the court did not err in allowing the amendment to be filed, and the filing of it did not constitute the bringing of a new cause of action against Sternberg. Sternberg permitted a decree by default to be entered against him. Proof was heard by the court before entering the decree, and the presumption is that the evidence introduced was sufficient to sustain the issues raised by the complaint. Indeed, the evidence heard at the trial is not contained in the record, and no contention is made by appellant that it is not sufficient to sustain the decree. His only contention is that the court did not acquire jurisdiction over his person, because the cause of- action against him was improperly joined with one against Ingram, and because the amendment to the complaint, which was allowed to be filed only two days before the decree was entered of record, constituted the bringing of a new- suit against him. - These contentions have-been determined adversely to him for the reasons stated above, and it follows that the decree must be affirmed.