Arlt v. Langley
| Citation | 227 N.W. 469,56 S.D. 79 |
| Decision Date | 19 November 1929 |
| Docket Number | 6548. |
| Parties | ARLT v. LANGLEY et al. |
| Court | Supreme Court of South Dakota |
Appeal from Circuit Court, Pennington County; Walter G. Miser Judge, and H. R. Hanley, Circuit Judge.
Action by William G. Arlt against Harriett Haines Langley and another, in which defendants filed a counterclaim. From a judgment for plaintiff and an order overruling a motion for a new trial, defendants appeal
Gardner & Churchill, of Huron, and George E. Flavin, of Rapid City for appellants.
Buell, Denu & Philip and H. F. Fellows, all of Rapid City, for respondent
This appeal deals with certain machinery and equipment used in the business of a creamery and ice cream manufactory. Plaintiff Arlt was the owner of the building in Rapid City devoted by him to that business, and defendants Harriett Haines Langley and John C. Haines, a corporation, herein respectively referred to as Langley or Haines, were the holders of a real estate mortgage thereon. Whether the machinery and equipment were fixtures or appurtenances of the real estate, passing to defendants with title to the building on foreclosure of their mortgage, is the primary question of fact which was tried below and presented here by defendants' appeal from an adverse decision.
The mortgage was given by the plaintiff, Arlt, to the defendant Haines on July 2, 1920, and recorded July 7th. It covered the real estate above mentioned by description of lots and block "with all buildings and appurtenances thereon." In February, 1924, a default decree in foreclosure of the mortgage was entered in favor of the mortgagee and against the mortgagor, Arlt, and others. Therein the mortgaged property was described as in the mortgage. Title to the real estate acquired on the foreclosure later passed to defendant Langley. She also claimed to have acquired title to the property by sheriff's deed, on foreclosure of a mechanic's lien, dated June 24, 1924, after which time the premises were occupied by plaintiff, Arlt, the mortgagor, under lease from her. About March 13, 1926, the building and machinery and equipment were sold to the Fairmont Creamery Company. At that point this controversy took form. The defendants and the plaintiff joined in a bill of sale covering the items here in dispute, and by contract agreed that the sum of $12,000, as the proceeds of sale, should be deposited with the Pennington County Bank, "there to remain until the title and ownership of said property is and shall be determined as between the parties hereto and that upon such determination each of the parties shall receive from the said money so deposited the value of such personal property as set forth in Exhibit A."
To this contract there was attached an exhibit describing thirty-six articles of property with the value stated opposite each article, the descriptions of which articles were as follows: 1 churn; 22 Friday boxes; 1 churn strainer; 1 Toledo platform; 1 Jensen vat 200 gal.; 1 Jensen vat 300 gal.; 1 Friday printer complete; 1 Toledo print scale; 1 12-bottle electric tester; 1 Victor starter can (old); 1 12-bottle Troemmer balance; 17 1/2 H. P. motor; 200 (app.) 10 gal. cream cans; 2 Davis-Watkins freezers; 1 size 1 viscolizer; 1 DeRaef ice cream test scale; 1 tubular cooler; 2 ice cream mix cans; 1 ice cream crusher (installed); 600 5-gal. tubs and cans, inc. iceless packers; 100 2 and 3 gal. packers and 7 cans; 50 1-gal. tubs and packers; misc. brick wells, molds, etc.; 1 12-ton York ice machine, inc. all coils and motor; 1 ice tank and 49 cans misc. 1 ice crusher; 1 buttermilk tank; 1 Reo speed wagon; 1 ice cream can washer; 25 milk bottle cases; 1 Burroughs adding machine; 1 typewriter and desk; 1 cast iron safe; 1 bookkeeper's desk; misc. items, inc. files, office desk, and other equipment.
Thereafter, on the same day when the contract aforesaid was executed, this action was commenced by Arlt as plaintiff under a complaint in the form of action of replevin. It alleged that plaintiff was and had been the owner of the property, described as above, and that the defendants, the appellants here, wrongfully retained and refused to deliver the same to plaintiff. By answer, the defendants disputed the present or past ownership of the property in plaintiff, pleaded the fact of the sale of the items to the Fairmont Creamery Company, and the deposit of the proceeds of the sale as above stated, and pleaded at length the contract above mentioned. By counterclaim the defendants alleged ownership of the real estate, described by lots and block, "together with all buildings and appurtenances situated thereon and used in connection therewith and all the appurtenances, machinery, tools, equipment, supplies and property of every character used in connection with and appurtenant to that certain business known and designated as a creamery business *** as conducted in said building by the plaintiff *** prior to the 12th day of March, 1926 *** including each and every item and description of property listed and described in Exhibit A." The said exhibit was identical with a list or description of the items as attached to the complaint and the contract above mentioned.
The counterclaim also set forth the fact of sale of the property and the deposit of the proceeds of sale, alleged that the plaintiff had no right or title in or to the property or the fund of $12,000, and declared that the counterclaim was brought for the purpose of determining the adverse claim of plaintiff to the real property and to the property appurtenant thereto, and for the purpose of having the respective rights and interest of the plaintiff and the defendants in the fund and the sum of $12,000 determined. Prayer for relief, in the said counterclaim, conforms to these allegations, including a demand that the defendants be adjudged the owners and entitled to the possession of the real property and the property appurtenant thereto, and entitled to the possession of said sum of $12,000. The counterclaim is in the form of a complaint in an action to quiet title to real estate, and calls upon the plaintiff to set forth his title or claim to the same; the articles of property above described being treated as a part of the real estate by the pleading. To this counterclaim plaintiff replied by disclaimer of any interest in the real property mentioned in the answer, and by his reply the plaintiff reasserted his claim of ownership to the property described in the complaint as personal property.
The defendants then demurred to the reply, and the demurrer was overruled. Plaintiff, as respondent here, says the ruling on this demurrer may not be considered on appeal, for the reason that it was not specified as an error on the motion for new trial. But the appeal is from the judgment as well as from the order overruling motion for new trial. On appeal from judgment it is well established that an error patent on the face of the judgment roll may be considered such as a ruling on demurrer. In the consideration of this question we will treat the pleading of defendants, consistently with their contention, as a counterclaim to quiet title to real estate. The question therefore is: Where counterclaim is for the quieting of title to real estate in the statutory form of a complaint to quiet title, is a reply of plaintiff thereto sufficient which fails to "set forth fully and particularly the origin, nature and extent" of his claim to the property, according to the demand in the prayer for relief of the pleading to which that reply is an answer? Without considering whether such an objection should be taken by demurer or motion, and assuming that, in the ordinary case, a reply to a counterclaim to quiet title (like an answer to a complaint for such purpose) should fully disclose the source and extent of the title and interest which the answering party claims, that proposition is without relevant application here.
The substantial issue between the parties was whether certain property was, or had been, in fact a part of the real property; the circumstance of ownership in one or the other party being dependent upon that basic question. By treating these articles of machinery and equipment as a part of the real estate for the mere purpose of pleading and form of pleading, the counterclaimants could not compel the plaintiff to follow their suit and thereby concede even indirectly that the machinery and equipment constituted fixtures or appurtenances to the real estate. The reply, therefore, which, with a general denial, merely reaffirmed the plaintiff's claim to ownership of the articles as personal property, was proper and sufficient.
By the pleadings and by the opening statement of the plaintiff to the jury it appears to have been conceded that the articles described in the complaint were not in the possession of the defendants at the time of the commencement of the action that they had been sold, and the sum of $12,000 as the proceeds of sale deposited in bank as above recited. For that reason defendants moved for the direction of verdict, and on this appeal they maintain that plaintiff's cause, as alleged, has wholly failed. As made at the time of plaintiff's opening statement, and before plaintiff had rested his case, this motion could not have been properly granted. But, as a similar motion was made at the conclusion of the trial, the subject will be considered at this point. Every fact alleged in the complaint was conclusively refuted, except the allegation of ownership of the property in the plaintiff. We know of no cause of action which may be expressed by a naked allegation of ownership. Although the complaint is purely in replevin, the plaintiff admitted that the defendants did not have possession of the...
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