CASES DETERM I NED
IN THE SUPREME COURT ' OF ARKANSAS MILLER V. GORDON. Opinion delivered July 5, 1926. REPLEVIN—FORM OF' JUDGMENT.—The proper practice in actions of replevin is to render judgment for money, or, in the alternative, for the return of the property, unless it appears that the lirop-erty cannot be returned. 2. APPEAL AND ERROR—PRESUMPTION IN FAVOR OF JUDGMENT.—Where an unconditional money judgment in a replevin suit was rendered, it will be presumed on appeal that the property could not be returned. Appeal from Ouachita Circuit , Court; L. S. ;Britt, Judge ; affirmed. , - G. W. Matthews, for appellant. W. K: Oldham, Jr., for -appellee. HUMPHREYS, J. One opinion will suffice in the twO cases, as the same question is involved in both.. They. are replevin suits, NO. 9247 .being to recover a Wilbourne. wagon 2 3-4, of the value of $115, which appellee sold to * Alex Miller and RiCe Miller and retained title tilerein until the : purchase money, was paid; - and . NO. 9248 being tO recover a bay horse mule, a bay mare mule and two cows and calves of the value' of . $193, which .were embraced :in a chattel mortgage executed by Francis Miller to appellee. When the writs of replevin were -served, each appellant; • in order to retain the property; . gave a bond signed- by each with the other appellants as suretiesy which bonds. are . as follows : • "We undertake and are botind to the' . plaintiff,' George R. 'Gordon, in the sum of'.. two,. htindred . thirty
9 MILLER V. GORDON. , [172 ($230) dollars, that the defendants, Alex Miller and Rice Mille* shall perform the judgment of tbe court in the. above entitled case. "Dated this 27th day of May, 1924." - "We undertake and are bound to — the plaintiff, George R. Gordon, in the sum of four hundred dollars ($400), that the defendant, Francis Miller, shall perform the judgment of the court in the above entitled cause. "Dated this the 27th day Of May, 1924." • Default judgments were rendered against the appellants and their bondsmen in the cases in the court of the juStice of the peace where the suits were brought, from which appeals were prosecuted to the circuit court. When the cases were called for trial in the circuit court, appellants failed to appear, whereupon default judgments were again rendered against appellants and their bondsmen for the value Of the property involved in 'each snit . , from which appeals have been duly prosecuted to this court. The respective appellants contend for a reversal of • the judgments against them upon the alleged ground that the trial court erred in rendering unconditional Money judgments against them, whereas he should 'have rendered judgMents in the alternative for the return of the prOperty or- its value. It is , usual and. proper ,in replevin suits to render judgments in the. alternative for. the return. of the property unless it appears, for . smile reason, that the property cannot be . returned. In that case it is proper to render an absolute rironey judgment .for the value of the property. Cathey.v. Brown; 7.0 Arlc 348, 68. S. W. 31. We. must presume that the. testiniony in these cases disclosed some good reason why the property could not .be returned, and that the absolute money judgments were rendered -agast the . appellants on that account. This. presumption will be indulged where,. default: judgments were rendered and, where the contrary is not made to appear, for every presumption must be indulged in favor of the validity of the . judgments. No error aripearing, the judgments are affirmed.
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