ISABEL V. GEN. MOTORS A . CCEPTINCE CORB. 1125 ISABEL V. GENERAi * MOTORS ACCEPTANCE CORPORATION. 4-4368 . • . O „ p • inion delivered OCtober • 12, 1936: SABB LL FiEPI:EVBsi OF FROPERTY SOLD coNnITIONALL ;z.—In . an action ' for 'Persdhai proPerty s , O s ld under a conditional ' saleS .* contraCt, it is not necessary'for tlie plaintiff, prior fo filing the , ,suit,,to 'Oliver: to : the original defendant a verified stateme:nt account as , required by. § 7403, Crawford. & Moses' Dig., or .the reason that that statute applies only to those who occupy . the/ itatus OrMOrtgagor and mortgagee, and not to vendors in Condi-' tional . salésIcOntracts:' ' ' 2. SALES= -REpL EVINCROSS-BOND.—in replevin for 'persbnal erty ,wrongfully . detained, sureties on , defendant's cross-bond are liable kor damages up to the day of trial, though that amounts to more than asked for in the' CoMplaint. Crawford & Moses' Dig., § 8655. ■. . •. , Appeal. Jroni„Cross Circtht court, First Division; Judue • affiriried. . • Action by General Motors Acceptance Corporation ao 'a • ins • t • I •• r ‘• v in : o- M. • Isab • e • l :, . F • ro : m a def :• a ult judgment de- fendants appealed. . .„ Johd A Foglernan and' P. .V. Wheeler, ,for appellant. . . Dion, Williams & PAiniondsom, Walter N. Killoug4 and Eltb , U, A. Rieves, for appellee. • • „ . JOHNSON "C. J. This appeal comes from a judgment o , f . . t he Cr • OSs.c • ircuit Couy ; t wh • er • e • in the appellants failed tO appear arid make .defense. , , The suit ,was predicated upon a title retaining ' COntract ; of sale and purchase. The 'complaint' did not 'allege Cdnipliaime . with § CraWfOrd 7403 of Mose§' Digest;:tequiting sfkement of accoUnt to''be' delivered before the suit iS flied . hnd this is'the firSt queStion Preiented' for donSid-eratiori : on appeal.' ' ' ; 'The 'Suit WaSin reifievin and'drnages for 'the wrong,- ful detention were alleged to be $50, huit a reCoVerY $250 ;was perinitted'•by ; the : trial-Co-Lift Upon' a!' trial to a, jury and•this•ds the second- error alleg•ed. It was' not necesSary for'plaintiff lo h deliver to the' origirial defendant a : verified itemized Statement , of ac-6ount prior •to , the filink ," the'lsuit as required ; by § 7463'
1126 ISABEL V. GEN. MOTORS ACCEPTANCE CORP. [192 of Crawford & Moses' Digest for the reason that said statute applies only to mortgagors, mortgagees and those occupying that status and does not apply to vendors in conditional sales contracts or their assignees. The statute reads as follows : "Before . any mortgagee, trustee or other person shall proceed to, foreclose. , any mortgage, deed of trust (of) or to • replevy under such mortgage, deed of trust or other instrument, any personal property, such mortgagee, trustee or other person shall make and deliver to • the mortgagor a verified statement 'of his account, showing each item, debit and credit, and the balance due. Provided, if the mortgagor disposes or attempts to dispose of any of the property mortgaged, or absconds or removes from the county, such statement shall not be necessary." • This section of the statutes is § 2 of act.99 of 1893. The title to this act provides: 'An Act . to Regulate the Execution and Foreclosure of Mortgages on Personal Property, etc." It will be observed that vendors in conditional sales contracts are not mentioned in the body of the act• nor in the title thereof. • The title to . the act which irtay be resorted to . to ascertain the legislative intent in doubtful cases, Morrow v. Strait, 186 Ark. 384, 53.S. W. (2d) 857 ; Matthews v. Byrd, 187 Ark. 458; 60 S. W. (2d) 909, restricts the application of the act to , "mortgages" and also the proviso of the act limits its aPplication to "mortgagors" and . "property mortgaged.!', The phrase, "or other instruments,'", as employed in the act and which lends, color to appellants' contention that the act applies . to conditional vendors is especially without force when the preceding language of the act is considered, namely : "before any mortgagee, trustee or other person shall proceed to foreclose any mortgage, deed of trust, etc." Although not argued in briefs we will say in passing that the views here expressed are not in conflict with those entertained in Passwater Chevrolet Co. v. Whit-ten, 178 Ark. 136, 9 S. W. (2d) 1057, wherein we determined that § 8654a, Crawford & Moses' Digest; applied
ARK.] 1127 to conditional sales vendors. This section is a part of act 158 of 1.901, p. , 303. This act has no proviso as does the act of 1893 and moreover, the title is not restricted to "mortgage" foreclosure as is the act of 1893. • In respect to the contention that the court erred in permitting a recovery for the wrongful detention of the property in a greater amount than the sum claimed in the original complaint, but little need be said. Appellants are the sureties upon the cross-bond executed by the original defendanfs . in the action: By virtue . of this obligation said defendant retained the prOperty during the pendency of the suit. Section 8655 of Crawford & Moses' Digest authorizes a recovery by the plaintiff in replevin actions where a cross-bond has been filed by the defendant and his surety "for the value of the property and also damages ' ' as the same may be found by the court or jury trying such cause." This language .is amply ;broad..to permit a recovery by a plaintiff in replevin where a cross-bond has been filed and property retained thereunder up to the date of the trial, and the trial court was correct in so deciding. No error appearing, •the judgment is 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.