Avery Manufacturing Company v. Crumb

Decision Date23 January 1905
Citation103 N.W. 410,14 N.D. 57
CourtNorth Dakota Supreme Court

Appeal from District Court, Cass county; Pollock, J.

Action by the Avery Manufacturing Company against Leo H. Smith. Judgment for defendant, and plaintiff appeals.

Reversed.

Reversed and remanded.

Young & Wright, for appellant.

The right of trial by jury is preserved in substance as it existed at the adoption of the constitution, and in the classes of cases to which it was then applicable. Cooley's Const. Limitations, 506; 6 Am. & Eng. Enc. Law (2d Ed.) 974; Flint River Steamboat Co. v. Foster, 5 Ga. 194, 48 Am. Dec. 248; Lake Erie, etc., Ry. Co. v Heath, 9 Ind. 558; Byers v. Commonwealth, 42 Pa. 89; Whallon v. Bancroft, 4 Minn. 109; Mead v. Walker, 17 Wis. 189; Hawthorne v. Panama Park Co., 32 So. 812; Whitehurst v. Coleen, 53 Ill 247; State Board v. Ray, 48 A. 802.

Trial of issues of fact of a legal nature in equitable suits is recognized in many jurisdictions. McNulty v. Mt. Morris Electric Light Co., 172 N.Y. 410, 65 N.E. 196; Lillienthal v. McCormick, 117 F. 89; Hudson v Wood, 119 F. 764; Kitts v. Wilson, 5 N.E. 400; Abernathy v. Allen, 31 N.E. 534; Bradley v. Aldrich, 40 N.Y. 504, 100 Am. Dec. 528; McMartin v. Bingham, 27 Iowa 234, 1 Am. Rep. 265; State Journal Co. v. Commonwealth Co., 43 Kan. 93, 22 P. 982.

Where a case exclusively of equity jurisdiction has been tried as an action at law, to a jury, verdict will be set aside and new trial granted, even if no specific objection was made by either party to such method of trial. Prondzinski v. Garbutt, 8 N.D. 191, 77 N.W. 1012; Peckham v. Van Bergen, 8 N.D. 595, 80 N.W. 760.

The right to a jury trial upon an amended complaint in an action at law is not lost by failure to demand a jury trial under the original complaint, presenting a case for purely equitable relief. Mares v. Wormington, 8 N.D. 329, 79 N.W. 441.

The court erred in denying appellant's leave to amend its complaint; the practice is liberal in matters of amendments and they should always be allowed in furtherance of justice. Section 5297, Rev. Codes; Anderson v. First National Bank, 5 N.D. 80, 64 N.W. 114; Martin v. Luger Furniture Co., 8 N.D. 220, 77 N.W. 1003.

The judgment is indefinite, uncertain and contrary to law, not warranted by the findings nor by the evidence, nor are the findings of fact supported by the evidence. The court finds the action is to foreclose a chattel mortgage upon personal property including the bay mare Daisy, nine years old, weight 1,200 pounds. Also that the defendant Smith is the owner and holder of liens against this property including one bay mare named Daisy, which are superior to the liens of the plaintiff. Respondent testifies that all the horses and mares described in the complaint and judgment, including the bay mare named Daisy, were worth $ 1,200. There is no testimony as to the value of the separate animals exclusive of the mare Daisy. In none of the respondent's chattel mortgages is there a description to cover "one bay mare named Daisy, nine years old, weight about 1,200 lbs." The court could not fix the amount of the recovery as there is no proof as to the value of the horses after the elimination of Daisy.

In an action between the owner and lien holder, or two lien holders, the measure of damages, if the value of the property exceeds the sum due upon the lien, is the amount of the lien. The respondent cannot recover by showing merely the amount of his lien, he must show the value of the property alleged to have been converted, which is prima facie the correct measure of damages. Lovejoy v. Merchants State Bank, 5 N.D. 623, 67 N.W. 956; Union Bank of Oshkosh v. Moline, Milburn & Stoddard Co., 7 N.D. 201, 73 N.W. 527.

This not being shown, there is no basis for a recovery against the appellant.

Morrill & Engerud and C. S. Shippy, for respondent.

Trial by jury is a right in an action at law, and not in a suit in equity. Rider-Wallis Co. v. Fogo, 78 N.W. 767; Klein v. Valerius, 57 N.W. 1112; Hotaling v. Tecumseh Nat'l Bank, 75 N.W. 242; Greenleaf v. Egan, 15 N.W. 254; Marling v. Burlington, C. R. & N. R. Co., 25 N.W. 268; Wilson v. Johnson, 43 N.W. 148; McCormick v. Phillips, 4 Dak. 506, 34 N.W. 39; Gull River Lumber Co. v. Keefe, 6 Dak. 160, 41 N.W. 743; 6 Am. & Eng. Enc. Law (2d Ed.) 975.

No demand was made for a jury trial or the question raised in the trial court. It is now too late for appellant to complain. Lace v. Fixen, 38 N.W. 762; St. Paul Distilling Co. v. Pratt, 47 N.W. 789; Peterson v. Ruhnke, 48 N.W. 786; State v. Craig, 12 N.W. 301; Baird v. Mayor, 74 N.Y. 382.

Appellant asserts that the judgment is indefinite and uncertain, not warranted by the findings or the evidence, and that the findings are not supported by the evidence. Appellant seeks to foreclose a chattel mortgage executed by the defendant. Respondent, with others, are made defendants, and the complaint alleges that they claim to have some lien upon the personal property described in the mortgage superior to that of the appellant. The complaint also alleges that appellant has obtained possession of all of said property. The complaint asks that respondent set forth the nature of his respective claims and liens, and that they be adjudged inferior and subject to the appellant's mortgage. Respondent answered admitting appellant's possession of the property, and asserts that respondent's liens are all prior and superior to the appellant's, and asks for judgment that the amount due thereon be ascertained; that he have judgment against appellant for the amount. The issue was the priority of the respective liens. After ascertaining the priority the court is to determine the amount due each party on their respective liens and render a judgment according to the facts. The possession of the property is admitted to be in the appellant. Appellant at no time offered to turn over the property to respondent; neither has he abandoned possession thereof under its replevin action. The court finds that there was due appellant upon his note and mortgage the sum of $ 1,739.20. The court finds the value of the property taken by appellant is $ 1,377.61, and that there is due the respondent on the notes secured by his lien the sum of $ 1,600. The court finds that appellant is entitled to a decree of foreclosure and sale of the property as well as personal judgment against the defendant, Crumb; that respondent's liens are superior to appellant's and he is entitled to have the amount of his said liens satisfied from the foreclosure sale. In case appellant fails to proceed with the foreclosure sale and therefrom satisfy the amount due respondent, or so much thereof as the proceeds will satisfy, respondent is to have judgment against appellant for the value of said property, towit: $ 1,377.61. The judgment is in accordance with these findings and conclusions. It specifies the rights of each party, the amount due appellant as well as respondent. The alternative judgment is not for the full amount of respondent's liens because the value of the property is not as great as the amount due the respondent on his liens. This is in accordance with the decisions of this court. Union Bank of Oshkosh v. Moline, Milburn & Stoddard Co., 7 N.D. 201, 73 N.W. 527; Lovejoy v. Merchants State Bank, 5 N.D. 623, 67 N.W. 956.

MORGAN, C. J. YOUNG, J., concurs. ENGERUD, J., took no part in the opinion.

OPINION

MORGAN, C. J.

Plaintiff brought this action to foreclose a chattel mortgage upon stock and grain given to it by the defendant Crumb. The defendants L. H. Smith and O. P. Smith are made defendants, as owners of other chattel mortgages upon the stock, and of a seed lien on the grain. The relief prayed for is the foreclosure of the plaintiff's mortgages, and that defendants' lien and mortgages be declared inferior to plaintiff's lien upon the property. The complaint shows that the plaintiff obtained possession of the property covered by its mortgage, and had possession of the same when this action was commenced. The possession of the horses and grain on which plaintiff and defendants claim first liens was obtained by the plaintiff under an action of replevin brought by it to obtain such possession. The defendant L. H. Smith answered in this action, and specifically set forth his mortgages on the stock and lien on the grain, and asked that such mortgages and seed lien be declared superior and prior to those of plaintiff. The defendant also asked for judgment as follows: "That the amount due this defendant, Leo H. Smith, upon said notes and secured by said chattel mortgages and said seed lien upon said described personal property, may be ascertained by this court, and that the defendant, Leo H. Smith, have judgment against said plaintiff for the amount so ascertained, together with all costs and disbursements of this action. That the lien of plaintiff upon said property, if any it has, be declared and adjudged subsequent and inferior to the liens of the defendant, Leo H. Smith, upon said property. That the defendant, Leo H. Smith, do have herein such other, further or different relief as to the court may seem just and equitable in the premises." The trial court found that the defendant Leo H. Smith has the prior liens on the property under his mortgages, and that plaintiff's lien is subject thereto. Personal judgment was ordered for the plaintiff against the mortgagor for the amount due on its notes for the sum of $ 1,739.20. The court found there was due on defendant's notes over the sum of $ 1,600. The value of the property taken by the plaintiff on which defendant held prior liens to plaintiff's mortgage was found to be $ 1,377.61. The mortgaged property was ordered sold...

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