Boom v. St. Paul Foundry & Manufacturing Co.

• Citation: 33 Minn. 253
• Parties: CHARLES D. BOOM <I>vs.</I> ST. PAUL FOUNDRY & MANUFACTURING COMPANY.
• Decision Date: 11 March 1885
• Court: Supreme Court of Minnesota (US)

Page 253

33 Minn. 253

CHARLES D. BOOMvs.

ST. PAUL FOUNDRY & MANUFACTURING COMPANY.

Supreme Court of Minnesota.

March 11, 1885.

Appeal by defendant from an order of the district court for Ramsey county refusing a new trial after a trial by Brill, J., without a jury.

Campbell & Odell, for appellant.

S. A. Plumley, for respondent.

DICKINSON, J.

In a former action in the nature of replevin, brought by this defendant against this plaintiff, a recovery of the possession of a portable steam-engine was sought. The statutory bond required in such actions was given, the plaintiff (this defendant) being the principal obligor. Upon the proper requisition the property was taken from the defendant, Boom, and delivered to the plaintiff in that action. The cause was tried before the court without a jury, upon an agreed statement of the facts, and upon the pleadings, showing among other things that the plaintiff's (this defendant's) right was that of a mortgagee, from two persons owning the property as tenants in common, and that the defendant's (Boom's) asserted claim was that of ownership of the undivided one-half of the property by purchase from one of such owners, bona fide, and without notice of the mortgage. From the pleadings and the stipulated facts the court found, as conclusions of law, that the defendant was the owner of such half interest at the time of the commencement of that action, that the plaintiff's mortgage ceased to be valid, as against the defendant's (Boom's) interest, at a time prior to the commencement of that action. The court further concluded that, as to the right of possession, the relation of the parties was that of tenants in common, and therefore that the action could not be maintained; that the defendant was entitled to judgment of dismissal, but without prejudice to a future foreclosure of the plaintiff's mortgage; that defendant could not recover damages for detention. The court ordered judgment to be entered accordingly, and thereupon judgment was entered dismissing the action. No return of the property to the defendant was adjudged.

Subsequent to the proceedings above recited, this action was commenced upon the replevin bond. The condition of the bond is that the plaintiff "shall prosecute said action with effect, and return said property to said defendant, if a return is adjudged, and shall pay to him such sum as for any cause may be recovered against the plaintiff." The breach for which a recovery is sought is that this defendant did not prosecute its action with effect.

The condition to prosecute the replevin action "with effect" is to be construed as meaning with success, or to a successful termination. Morgan v. Griffith, 7 Mod. 380; Perreau v. Bevan, 5 Barn. & C. 284; Jackson v. Hanson, 8 M. & W. 477; Tummons v. Ogle, 37 Eng. Law & Eq. 15; Gibbs v. Bartlett, 2 Watts. & S. 29; Brown v. Parker, 5 Blackf. 291; Berghoff v. Heckwolf, 26 Mo. 511. The judgment was not such as should have been rendered upon the facts as determined by the court. The court probably forbore to order judgment for a return of the property to the defendant, upon the theory that since both parties had, as was considered, equal rights to the possession of it, no judgment for possession should be awarded in favor of either. But if both parties had equal rights to a possession of the property neither should resort to the legal remedy of replevin to take the property from the possession of the other; and where the plaintiff in replevin does not show that he is entitled to this remedy, by establishing his alleged right of possession as against the defendant, the parties should be placed in statu quo by a restoration of the property to him from whom it had been taken. Effect should not be given to the proceeding as a means of transferring the possession of property to a plaintiff who is not entitled to a judgment awarding possession to him. But while the judgment did not award to the defendant in that action what he was entitled to — the return of the property — it determined nothing in favor of the plaintiff as to its right of possession. On the contrary, it did determine that the plaintiff could not maintain the action for the recovery of the property. The condition to prosecute with effect was therefore broken.

It was not necessary to the maintaining of an action for this breach of the bond that there should have been a judgment in the replevin action for a return of the property, or for damages. This condition is distinct and independent of the other conditions of the bond, and for its breach an action will lie. Morgan v. Griffith, supra; Gibbs v. Bartlett, supra; Balsley v. Hoffman, 13 Pa. St. 603; Gardiner v....