ARK.] STERNBERG V. STRONG. 419 STERNBERG V. STRONG. Opinion delivered April 23, 1923. 1. MORTGAGES—CONVERSION OF MORTGAGED PROPERTY—JOINT LIABILITY.—Where a mortgagor sold a part of the mortgaged property to a third person without tbe knowledge or consent of the mortgagee, this constituted a conversion of the property, for which the mortgagor and the purchaser were liable in the same action. 2. PLEADING—MISJOINDER OF CAUSES—WAIVER.—When a chattel mortgagee joined in a suit to foreclose with one for conversion of nart of the mortgaged property, this constituted only a . misjoin-der of causes of action, objection to which Was waived by failure to move to strike. 3. PLEADIN G—IN DEFINITENESS—REMEDY.— Where the substantial facts which constitute a cause of action are stated in the corn-
420 STERNBERG v. STRONG. [158 plaint or can be inferred by reasonable fntendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete or defective, such insufficiency pertaining to the form rather than the substance, the proper correction is by motion before the trial to make the averments more definite and certain by amendment. 4. PLEADING—AMENDMENT--NEW CAUSE 'OF ACTION.—It was not error to permit a complaint which stated a cause of action de-fectively to be amended so as to make the allegations more definite and certain, and the filing of an amendment to the complaint for that purpose two days before the decree was rendered did not constitute the bringing of a new cause of action. Appeal from Greene Chancery Court; Archer Wheat-ley, Chancellor; affirmed.. STATEMENT OF FACTS. • A. R. Strong brought this suit in equity against W. T. Ingram and others, including S.S. Sternberg, to foreclose a chattel mortgage on certain personal property exe.3uted in his favor by W. T. Ingram to secure an indebtedness of $2,000. At the time the mortgage Was executed W. T. Ingram resided in Mississippi County, Ark., and the mortgage was duly filed for record there. W. T. Ingram had possession of the property in.Missis-. sippi County, Ark., and sold a portion of it to S. S. Sternberg and others who resided in Mississippi County. W. T. Ingram, without paying any part of the mortgage indebtedness, subsequently moved to Greene County, Ark., and carried the remainder of the mortgaged prop-. erty . with him. . In another paragraph of his complaint the plaintiff alleges that, subsequent to the execution and delivery of the mortgage, •. T. Ingram, without his knowledge and consent, -sold a portion of said mortgaged property to S. S. Sternberg and others in Mississippi County, Ark., and carried with him the remainder of the mortgaged property. • He sold a part -of -this to persons in Greene County without the knowledge or consent of the plaintiff.
ARK.] STERNBERG V. STRONG. 421 , The prayer of the complaint is that plaintiff have judgment against W. T. Ingram in the .sum of $1,323.89 and the accrued interest; that said Ingrain_be required to - give an accounting as to the parties to whom he has sold said mortgaged property; that a. receiver be ap-• pointed into whose possession the defendants be required to deliver the property, or its value, so respectively acquired by them, and that the property . which . may thus come into the possession of the receiver be sold on such terms as the court may direct, for the purpose of satisfying said mortgage indebtednesS. This Complaint was duly filed, and service of _summons was had on S. S. Sternberg on the 18th.day of October, 1920. An amendment to the complaint was filed by the. plaintiff on April 5, 1921.. In it the plaintiff alleges that the several sales made by Ingram of the mortgaged property amounted to a conversion of it by • the partie§ participating in the sales, and that the . property so sold had not been delivered to the receiver ; that the value of the property had greatly depreciated since its sale, and that the value of the mules sold to and converted by the defendant, S. S. Sternberg, was $400 at the' time of such conversion. Judgment was prayed for against him in this amount. Similar allegations were contained in the amendment of the complaint as to the other defendants who had purchased the mOrtgaged property. On the 7th day of April, 1921, the ease was-heard by tbe chancellor, and a. decree was entered in faver of the plaintiff. The case was heard upon the pleadings, the depositions of A. R. Strong . and W. T..Ingram, and a report of the receiver. Among other things the- court found_that the Plaintiff should have and recover in tort from the defendant, S. S: Sternberg, damages -in the sum of $400. - The decree specifically recites that S. S. Sternberg and other defendants, although duly served with personal summons for the time and in the manlier required by laW, came not but made default
492 STERNBERG V. STRONG. [158 To 'reverse the decree as to him, the defendant, S. S. Sternberg, has duly prosecuted an appeal to this court. J. T. Crdwder, for appellant. No jurisdi:ction was acquired of appellant by the court in Greene County by service of summons on him in Mississippi County, there being no joint liability between 'him and defendant Ingram. 144 Ark. 473; 150 Ark. 384. The filing of the amendment to 'the complaint two days before 'judgment by default taken was in effect a new suit, of which appellant had no notice. R. P. Taylor, for appellee. The amendment to the -complaint only amounted to making it more definite and certain. Case unlike 145 - Ark. 273. Mortgagee had right to sue the purchaser of the mortgaged property with the mortgagor, and, if riot, the purchaser, by not •objecting to the misjoinder, waived it. Sec. 7393, C. & M. Digest; 121 Ark. 51.4; 59 Ark. 280; 97 Ark. 432; 26 It: C. L. 763; 134 Ark. 311; § 1176, C. & • M. Digest. Appellant should have moved to transfer the cause. 140 Ark. 558 ; 151 Ark. 554. Evidence heard on triaf not in record, and will be presumed to support chancellor's findings. - HART, J., (after stating the facts). It appears from the record that the original suit to foreclose the mOrtgage was • rought by Strong, the mortgagee, in Greene County, and that service of summons was hail 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 a pplica-tion. There the court held that there was no liability At all on ihe 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 prop-
ARK.] STERNBERG V. STRONG. - erty 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 •. Meyer, 56 Ark. 499; Winter v. Smith, 45 Ark. 549. Appellee filed an amendment to his complain't 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 agains t 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 filiug of the amendment to the complaint amounted to the institution of a new suit by Stning against Sternberg. The original complaint specifically alleged that W. T. Ingram, without the consent or knowledge of Sfrong, sold a part of the mortgaged property. to S. S. Sternberg without paying the mortgage indebtedness. The prayer of the complaint was- that the defend ants 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 are im7 perfect, 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
424 STERNBERG V. STRONG. [158 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, with. out the consent of the mortgagee, and thereby converte6 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 make the complaint more definite and *•ertain 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 enter-ing-the decree, and the presumption is that the evidence introduced was sufficient to_sastain 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 15e filed Only tyo days before the decree was entered of record, constituted the bringing of a new suitagainst • These contentions have been determined adversely to him for the reasons stated above, and it follows -that the decree must be affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.