103 P.2d 23 (Colo. 1940), 14775, Barslund v. Anderson
|Citation:||103 P.2d 23, 106 Colo. 238|
|Opinion Judge:||YOUNG, Justice.|
|Party Name:||BARSLUND et al. v. ANDERSON.|
|Attorney:||[106 Colo. 239] L. C. Kinikin, of Montrose, for plaintiffs in error. Bryant & Stubbs, of Montrose, for defendant in error.|
|Judge Panel:||FRANCIS E. BOUCK, Justice (concurring in part). FRANCIS E. BOUCK, J., concurs in part. HILLIARD, C.J., not participating.|
|Case Date:||May 27, 1940|
|Court:||Supreme Court of Colorado|
Error to District Court, Montrose County; George W. Bruce, Judge.
Action in replevin by H. Rodney Anderson against William Barslund and another. Judgment was entered for plaintiff by default. Judgment denying a motion to set aside the judgment and for new trial, and defendants bring error.
Affirmed in part, reversed in part, and cause remanded with directions.
Anderson, plaintiff in the district court, held an over-due note of the Barslunds, defendants, secured by a chattel mortgage on certain livestock and farm machinery. Plaintiff, attempting to foreclose said mortgage, took over a part of the mortgaged property on February 1, 1940, but was unable to secure possession of all of it. February second, he instituted an action in replevin. A [106 Colo. 240] summons and writ were duly issued and served on the same day, the writ being executed by the sheriff taking the property into his possession. The Barslunds consulted two different attorneys who apparently were unwilling to represent them. They then conferred with a third firm of attorneys with whom they left the papers which had been served upon them. Various negotiations
were thereafter entered into between the attorneys for plaintiff and those employed by defendants, and defendants themselves. A redelivery bond was tendered which plaintiff rejected because the sureties thereon were financially irresponsible. No appearance was made by defendants and February 23 the court entered their default, a hearing was had, and judgment entered in favor of plaintiff. Findings were made that the plaintiff was entitled to the immediate possession of the property and that the value thereof was $300. The court further found 'that the Plaintiff's damages sustained by reason of the detention of said property by Defendants as set forth in said Complaint is the sum of three hundred dollars ($300.00).' The court then entered judgment against defendants for possession of the property described in the mortgage, for the sum of $300 for the wrongful detention thereof, and for plaintiff's costs in the sum of $20.75.
At this juncture defendants procured other counsel who filed a motion to set aside the default judgment and for a new trial. Stated generally the grounds upon which they sought the new trial were: That they had a partial defense to the note, in that certain payments made thereon had not been credited; that the attorneys employed by them had failed to interpose any defense; and that they are now advised that they have a good and meritorious defense to plaintiff's cause of action. The nature of the alleged defense, other than that of partial payment and that the property was worth more than the amount found by the court, is not disclosed. In the affidavit filed in support of their motion, defendants[106 Colo. 241] set forth that because of the judgment for $300 for detention of the property entered against them they had no plain, speedy, or adequate remedy at law or in equity. The court on a hearing denied the motion.
Defendants make the following assignments of error:
'(1) The complaint does not state facts sufficient to constitute a cause of action; in that, the action being in replevin should be for possession and sale, not ownership.
'(2) The judgment is contrary to law, not being in conformity with the Code on replevin.
'(3) The judgment is against the law, departing from the mortgage relied upon, for sale and accounting, and declaring for absolute ownership.
'(4) The court erred in denying defendants motion to set the judgment aside and for an accounting.'
The first assignment of error is without merit. Replevin is a possessory action. Under the defaulted chattel mortgage plaintiff was...
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