Rudolph v. North

Decision Date31 May 1888
Citation50 N.W. 487,6 Dak. 79
CourtSouth Dakota Supreme Court
PartiesRudolph v. North.

OPINION TEXT STARTS HERE

Appeal from district court, Lincoln county; C. S. Palmer, Judge. Reversed.

Replevin by Martin E. Rudolph against Julius M. North. Judgment for defendant, and plaintiff appeals.

The property in controversy was a stock of goods which had been taken possession of by defendant, as sheriff, under an attachment against Arthur F. Rudolph. Plaintiff claimed under a chattel mortgage to himself from A. F. Rudolph, which was marked “Exhibit C,” and under a junior chattel mortgage from A. F. Rudolph to Charles E. Judd, for $550, which was assigned to plaintiff after the goods were taken by defendant. By his amended answer, defendant disclaimed any right to possession of more of the property than might remain after payment of the amount due on the Judd mortgage, but he alleged that Judd, before the assignment to plaintiff, waived his statutory right to have his mortgage paid, or a deposit made therefor, and recognized defendant's right to possession under the attachment. The first mortgage was claimed to be fraudulent and void. The verdict was as follows: We, the jury in the above entitled action, find in favor of the plaintiff, and against the defendant, except as to the mortgage marked ‘Exhibit C,’ which we find to be null and void, and that the plaintiff is entitled to the possession of the property described in the complaint, and find the value thereof to be $2,549.47, and assess the plaintiff's damages sustained by reason of the taking and detention of the said property at $60.00.” On this the following judgment was rendered: First. That the value of the property described in the complaint is two thousand five hundred and forty-nine dollars and forty-seven cents, ($2,549.47.) Second. That of said amount of property the plaintiff had on the 13th day of January, 1885, (the time of the commencement of this action,) an interest amounting to five hundred and fifty-seven dollars and twelve cents ($557.12,) which in no way conflicted with the defendant's right of possession, and was duly disclaimed by defendant in his amended answer filed herein, and that said amount of five hundred and fifty-seven dollars and twelve cents ($557.12) was all the interest plaintiff had in said property. Third. That the chattel mortgage first described in the complaint as being made, executed, and delivered by A. F. Rudolph to the plaintiff, on the 24th day of ...

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