Brook v. James A. Cullimore & Co.

• Decision Date: 26 December 1967
• Docket Number: No. 41583,41583
• Citation: 1967 OK 251,436 P.2d 32
• Parties: Edward E. BROOK, Plaintiff in Error, v. JAMES A. CULLIMORE & CO., a co-partnership composed of James A. Cullimore and Kelvyn H. Cullimore, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 32

436 P.2d 32

1967 OK 251

Edward E. BROOK, Plaintiff in Error, v. JAMES A. CULLIMORE & CO., a co-partnership composed of James A. Cullimore and Kelvyn H. Cullimore, Defendants in Error.

No. 41583.

Supreme Court of Oklahoma.

Dec. 26, 1967.

Syllabus by the Court

1. The alternative remedy of a money judgment in replevin, 12 O.S.1961, § 1580, is extended solely for the benefit of the wronged party and affords a measure of relief only when the property cannot be returned.

2. The defeated litigant in a replevin action is not granted an option to either relinquish possession or pay the value of the property.

3. Where it appears that property is available for delivery, and the successful party in replevin insists on accepting it in partial satisfaction of his judgment, there is no error in requiring delivery of such property.

Appeal from District Court of Oklahoma County; W. R. Wallace, Jr., Judge.

Replevin action by Cullimore against Brook. Brook gave redelivery bond. Trial court adjudged that Brook deliver the property sought by replevin but failed to render an alternative money judgment for value thereof. Appeal by Brook. Affirmed.

J. B. Beaird, Oklahoma City, for plaintiff in error.

Dean Williamson, W. Samuel Dykeman, Oklahoma City, for defendants in error.

McINERNEY, Justice.

The question dispositive of this appeal is whether in a replevin action the defeated litigant in possession of property whose recovery is sought may 1) elect to retain that property as his own, against the will of the successful party; 2) impose his election by requiring the trial court to render an alternative money judgment against him; and 3) avoid delivery of the property by tendering its value as set forth in the affidavit for replevin.

Cullimore sued Brook in replevin claiming a special interest in multiple items of personal property by virtue of a chattel mortgage securing a note in the sum of $8,147.26 and sought possession of the personalty. As disclosed by the petition and the affidavit for replevin, the aggregate value of this property was $2,500.00. Cullimore sought judgment 'for the immediate possession of said property, or in lieu thereof the value of the same in the sum of * * * $2,500.00 in the event delivery cannot be had in substantially the same condition as at the time of the filing of this action, and for the costs of this suit, including an attorney's fee of * * * $1,160.44 * * *'. Brook gave a redelivery bond. He later offered to confess judgment for the alleged value of the property and a 'reasonable' attorney's fee. Concurrently with this offer Brook attempted to satisfy the judgment he so sought to confess. He remitted all the accrued court costs and, by separate checks paid into the clerk's office, he deposited $2,500.00--the alleged value of the property--as well as $1,160.44--the amount of the attorney's fee Cullimore sought to recover. The latter sum was 'tendered under protest' pending trial court's determination of a reasonable fee to be taxed as costs. Refusing to accept this offer of confession, Cullimore moved for a hearing 'to determine whether said property is available' for delivery and 'if found to be available that judgment be rendered * * * (for Cullimore) for immediate possession of said property' and that 'the court determine a reasonable attorney fee.'

At the hearing on Cullimore's motion Brook renewed his prior offer to confess a money judgment. He took the position the property whose possession was demanded could not be delivered 'in substantially the same condition as at the time of filing of this action.' Cullimore once again declined to assent to this confession. The issues to be tried were confined to determining whether the property can be delivered by Brook 'in substantially the same condition' as at the time the action was commenced and to ascertaining the amount of counsel fee. The trial court adjudged, inter alia, that Brook deliver to Cullimore the property whose recovery was sought. Brook was authorized to withdraw the deposits made to the clerk's office. No alternative money judgment was rendered against Brook. He urges on appeal that the cause should be remanded with directions 'to take evidence of the value of the property sought by replevin, and (to) enter a money judgment' for its value.

At common law, the right to possession of the property at the time action was commenced formed the sole issue in replevin. If the property could not be returned, there was no method by which the prevailing party could recover a judgment for the value thereof. For procurement of a money judgment in lieu of possession the successful litigant was relegated to the remedy of trover. Our statute, 12 O.S.1961 § 1580, has provided a cumulative or supplemental remedy in favor of one who succeeds in a replevin action. By the terms of this enactment, if the losing party has retained possession of the property under a redelivery bond, the successful litigant is entitled to a judgment not only for his costs and for the recovery of possession, but also, if he so choses, to an alternative money judgment for the value of the property. In the event possession cannot be given for any reason, the prevailing party may then proceed to enforce his money judgment. An alternative money judgment affords a new remedy given by the provisions of our Code of Civil Procedure. One on whom a new remedy is conferred may elect which course to pursue. He need not avail himself of the new remedy unless he so chooses, and if he does not, he is not barred from pursuing the old. The primary object of statutory replevin is...