Manilla Supply Co. v. Tiger Bros. , 126 Ark. 105 ( 1916 )

McCulloch, 'C. J.

Appellant rented land in Mississippi county to one Ballard, the latter agreeing to pay as rent one-fourth of the cotton raised on the premises, and appellant also furnished stock and other supplies to Ballard. Ballard gathered the crop and sold it to appellees, to whom he had previously mortgaged it, and this is an action instituted by appellant against appellees in the circuit court to recover the value of one-fourth of the cotton and to enforce a lien for supplies furnished Ballard.

On the trial of the cause the court submitted to. the jury the question of appellant’s right to recover the value of its interest in the cotton, but refused to permit a recovery on the account for supplies. The jury found in favor of appellant for the value of the cotton, and an appeal has been prosecuted from that part of the judgment refusing to permit a recovery for the amount of supplies and dismissing the complaint on that branch of the case. The correctness of the judgment in appellant’s favor for the value of its interest in the cotton is not questioned, as appellees have not appealed from the judgment. Therefore we need not enter upon any discussion of the question of appellant’s right to recover on that branch of the case.

Appellant sues on the theory that the purchase of the cotton by appellees from Ballard constituted a conversion, for which appellant has a right to sue to the extent of its interest in the property. If it be conceded that appellant had such title to the property as would justify the adoption of that remedy so far as the value of the rent cotton is concerned, it is true beyond question that appellant has'only a lien for the amount of the account for supplies, and has no title to the property which would sustain an action for conversion. The remedy on that branch of the case is by suit in chancery to enforce the lien against the proceeds of the property in the hands of the purchasers, Reavis v. Barnes, 36 Ark. 575.

The .statute provides that where there is an error as to the kind of proceedings adopted, the action shall not be dismissed but that the cause shall be transferred to the proper docket. Kirby’s Digest, § 5991. This, the court should ordinarily do on its own motion. Newman v. Mountain Park Land Co., 85 Ark. 208. But appellant elected to join the causes of action, and the statute does not authorize a splitting of a cause of action so as to transfer a part from the court where the action has been erroneously instituted. The statute contemplates the transfer of the action as a whole and not in parts. There was, therefore, no error committed by the trial court in refusing to enforce the equitable remedy in appellant’s favor for the recovery of the amount due on the account for supplies.

Affirmed.

Humphreys, J., not participating.