(dissenting). This action was
instituted before a justice of the peace to recover possession of certain chattels .for the purpose of foreclosing a mortgage executed by appellant to appellees, and the statute governing such actions provides that the defendant “shall have the right to prove or show any payment or payments or set-off under said mortgage, * * * and judgment shall be rendered for the property or the balance due thereon, and the defendant may pay the judgment for the balance due and costs within ten days and satisfy the judgment and retain the property.” Kirby’s Digest, § 6869.
Appellant presented two separate defenses in his answer: First, that appellees had failed to furnish an itemized account as required by statute (Kirby’s Digest, § 5415); and second, that the debt had been settled and the mortgage discharged by a new note for the sum- of one hundred and thirty-five dollars, executed by appellant to appellees, secured by another chattel mortgage. The judgment of the justice of the peace was in favor of appellees for recovery of the chattels, or, in the alternative, for the recovery of $222.85, the amount found to be due on the mortgage indebtedness. Appellant prosecuted an appeal to the circuit court, but whilst the cause was pending in the circuit court he instituted an independent action against appellees in which he set forth as grounds for recovery precisely the same things pleaded as a defense in his answer in this action, and in addition alleged that the justice of the peace was without jurisdiction and that the seizure of the property under process issued from that court was unlawful because the value of the property exceeded the sum of three hundred dollars. In the trial of that case the court rendered judgment on a directed verdict in favor of appellees and appellant prosecuted an appeal to this court, and we affirmed the judgment. That judgment is now pleaded in bar of appellant’s right to prosecute his appeal from the judgment of the justice of the peace in the original action, and the trial court sustained the plea.
If the judgment in the second action, which we affirmed, constituted an adjudication of the same issues involved in the original action,, then the last decision undoubtedly constituted a bar to the prosecution of the appeal. Church v. Gallic, 76 Ark. 423; Jenkins v. Jenkins, 78 Ark. 388; Dunbar v. Bourland, 88 Ark. 153; Quellmalz Lumber Manufacturing Co. v. Day, 132 Ark. 469; 2 Black on Judgments, § 791.
The issues were plainly stated in the opinion delivered .by this court on the former appeal (136 Ark. 512) and we decided that the justice of the peace was.without jurisdiction of the present action and that appellees had failed to comply with the statute with respect to furnishing an itemized statement of account, but that, notwithstanding those things, appellees were rightfully in possession of the mortgaged chattels, that in the imperfect state of the abstract we had to assume that the evidence established thé fact that the mortgage debt was due, and that appellees could not be sued for conversion of the property on account of the unlawful seizure under void process. In the opinion we said: “The abstract sufficiently informs us that the property was seized upon an order of delivery issued out of a court that had no jurisdiction over the subject-matter of the action for the reason that the complaint or affidavit for the order failed to affirmatively show that the property was of value not exceeding $300.” * * * “To sum up, it is ascertainable from the abstract that the seizure of the property under the writ of replevin was without authority of law. As we understand it, this finding is not conclusive of the issue involved. This suit is for the unlawful conversion of the mortgaged property. It can not be said that, because the manner of obtaining the mortgaged property was wrong, the possession thereof is unlawful.”
Now, what other issue is there for the court to try in the present action; or how can it try any issue at all since, according to the decision in the other case, the court is without jurisdiction of the subject-matter? Surely there can not be another trial of the issue whether or not appellees are rightfully iu possession of the property under a mortgage, for that question has been finally adjudicated in the other case; and it is equally plain that there can not be another trial of the issue whether or not appellees have a valid and subsisting, mature indebtedness secured by mortgage on the property involved in the controversy, for that question, too, was finally adjudicated in the former case.
The only other issue between the' parties not adjudicated in the other case relates to the amount of the mortgage debt, and that issue can not be decided in this action for the simple reason that the court is without jurisdiction—the jurisdiction being fixed according to the value of the property sued for and it has already been finally adjudicated that the court has no jurisdiction in the same.
When this case goes back to the trial court on remand the anomolous situation will be presented that the case is there again under the mandate of this court, but without jurisdiction of the subject-matter, and with all of the issues already adjudicated in another action between the same parties.
I fail to see the analogy between this case and the case of Livingston v. Pugsley, 124 Ark. 432, cited by the majority as sustaining their views.
If appellant has any remedy it is by paying off the mortgage and then suing to regain possession of the mortgaged property on refusal by appellees to surrender possession.
Mr. Justice SMITH joins in this dissent.