Brunswick Corp. v. Haerter

• Decision Date: 20 January 1971
• Docket Number: No. 8626,8626
• Citation: 182 N.W.2d 852
• Parties: BRUNSWICK CORPORATION, Plaintiff and Respondent, v. W. C. HAERTER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 852

182 N.W.2d 852

BRUNSWICK CORPORATION, Plaintiff and Respondent, v. W. C. HAERTER, Defendant and Appellant.

Civ. No. 8626.

Supreme Court of North Dakota.

Jan. 20, 1971.

Syllabus by the Court

1. For reasons stated in the opinion we find Brunswick Corporation is the proper party plaintiff in this action.

2. A seizure of personal property under a warrant of seizure is not dissolved by an amendment to the complaint which merely increases the amount of the claim,

but the seizure remains valid for the amount claimed in the original complaint and specified in the warrant of seizure.

3. The certificate of a notary public acknowledging the signature of the assistant secretary of a corporate principal on an undertaking is held sufficient though the body of the certificate mistakenly sets forth the name of the corporation rather than the name of the assistant secretary who signed the undertaking as assistant secretary of the corporation.

4. Where a corporate plaintiff obtains a warrant of seizure in an action to foreclose on personal property and causes to be filed an undertaking as required by Section 32--20--04, N.D.C.C., but the undertaking is signed by an agent of the corporate plaintiff without filing proof of the agent's authority to execute the undertaking on behalf of the corporate plaintiff, and thereafter the corporate plaintiff continues to prosecute the action and obtains a judgment of foreclosure on the property seized, it has ratified the act of its agent and is bound thereby.

5. Where the sheriff, under a warrant of seizure, seizes six bowling lanes, the automatic pinsetters, and allied equipment by serving the warrant upon the owner and removing certain parts and making the equipment inoperative, and leaves the property in the building where it was installed and used, and files a notice of seizure in the office of the register of deeds, he retains possession of the property and the seizure is not invalidated.

6. It is a general rule that a party who accepts the benefit of a judgment or order cannot afterward prosecute an appeal to review the same, but this rule does not apply where the parts of the judgment or order are separate and independent and the receipt of a benefit from one part is not inconsistent with an appeal from another. Thus, where the controversy raised on appeal from a judgment is confined to an additional amount claimed but not allowed by the judgment, an appeal on such question is not barred by acceptance of the amount allowed.

7. Where, upon appeal from a judgment in a case tried to the court without a jury, a trial anew is demanded upon the entire record, all of which is embodied in the settled statement of the case, the entire judgment is open for review and the entire cause is subject to trial de novo in the supreme court.

8. For reasons stated in the opinion it is held that the judgment be modified to include an additional amount for personal property taxes, penalty and interest.

M. W. Duffy, Cooperstown, for defendant and appellant.

Tenneson, Serkland, Lundberg & Erickson, Fargo, for plaintiff and respondent.

TEIGEN, Judge.

This case comes to us on appeal by the defendant Haerter with a demand for a trial de novo from the judgment of the district court. The district court, sitting without a jury, awarded a judgment in favor of the plaintiff Brunswick Corporation (hereinafter referred to as Brunswick) against the defendant W. C. Haerter (hereinafter referred to as Haerter) in an action for foreclosure on personal property covered by two installment contracts.

On September 9, 1959, Brunswick and Haerter entered into a retail installment contract for the purchase of six automatic pinsetters. Subsequently, extension agreements were entered into by the parties on September 19, 1963, and July 27, 1966. On October 20, 1959, the parties entered into a retail installment contract covering six bowling lanes, with allied equipment. On April 10, 1962, and September 19, 1963, the parties entered into extension agreements as to this contract also. The bowling lanes, with automatic pinsetters, were installed in the plaintiff's building where he operated a bowling alley.

Both retail installment contracts contained a number of provisions, among which were the provisions that the buyer (Haerter) would pay any tax levied upon the property described in the contracts and that the balance under each contract became immediately due upon the buyer's default. Haerter failed to pay personal property taxes levied on this equipment for the years 1960--1964, and 1966. In addition to this default, Haerter also defaulted in his payments due under the contracts. The last payment received by Brunswick on the pinsetter contract was on May 9, 1967, and the last payment received on the bowling lane contract was on November 29, 1966. Therefore, Haerter was in default on both contracts. In addition, Brunswick paid the personal property taxes, interest and penalties.

In May 1968 Brunswick brought this action in the district court to foreclose both retail installment contracts and in September 1968 amended its complaint to recover the personal property taxes paid on the equipment. Upon application of Brunswick the district court ordered the sheriff to seize, under a warrant of seizure, the equipment covered by both contracts. On May 1, 1968, the sheriff served the warrant of seizure and seized the equipment. In October 1968 Haerter counterclaimed for damages as the result of the seizure of the bowling equipment, claiming conversion by unlawful seizure.

The district court dismissed Haerter's counterclaim and awarded judgment to Brunswick for the balance due on both contracts. The court ordered that the equipment covered by the contracts be sold and that the net proceeds be used to pay the balance due Brunswick on both contracts, and that if such net proceeds were not sufficient to cover the judgment, Brunswick would have a general execution against Haerter for the deficiency. The court specifically held against Brunswick on its claim for the personal property taxes it had paid on the equipment.

Although Haerter lists seventeen specifications of error on this appeal, there are only three issues raised. The issues are: was Brunswick the proper party in interest; was the warrant of seizure valid and properly executed; and did Brunswick convert Haerter's bowling equipment? In addition, Brunswick raises the issue of whether the judgment should be modified to include the personal property taxes it paid.

The retail installment contract covering the six automatic pinesetters was between Haerter and Brunswick Automatic Pinsetter Corporation, and the retail installment contract covering the six bowling lanes, and allied equipment, was between Haerter and Brunswick-Balke-Collender Company. In its complaint Brunswick alleged that it was the successor in interest to both Brunswick Automatic Pinsetter Corporation and Brunswick-Balke-Collender Company. Both corporations were Delaware corporations. Haerter denied this allegation. The district court held that the evidence, by a fair preponderance, established that Brunswick was the successor in interest to Brunswick-Balke-Collender Company and Brunswick Automatic Pinsetter Corporation by way of merger and that such merger was common knowledge to the financial world so that the court, on its own knewledge, took judicial notice thereof.

As this case is here for a trial de novo we must find the facts anew. A reading of the district court trial transcript reveals no direct evidence that Brunswick was in fact the successor in interest to Brunswick-Balke-Collender Company and Brunswick Automatic Pinsetter Corporation. The plaintiff has alleged on this appeal that certain evidence was inadvertently excluded at the trial. A review of the transcript confirms this allegation. We found the excluded evidence material to a decision on appeal de novo; therefore, we issued a mandate as provided for in Section 28--27--32, N.D.C.C., directed to the trial court to take such evidence without delay and to certify and return it to this court. In compliance with this mandate additional evidence was taken by the trial court and certified to this court. This evidence was in the form of exhibits, consisting of certificates from the secretary of state of the state of Delaware and properly executed certifications from officials of Brunswick. These exhibits clearly establish that Brunswick is the successor in interest to Brunswick-Balke-Collender Company and Brunswick Automatic Pinesetter Corporation. Accordingly, Brunswick is the proper party in interest in this action.

Haerter alleges that the warrant of seizure was not valid and was not properly executed in that the undertaking was not sufficient in amount and the verification of the notary public stated that the undertaking was signed by 'Brunswick Corporation,' although it was actually signed by Edgar Vannerman, Jr., an assistant secretary of Brunswick.

As to the undertaking, Section 32--20--04, N.D.C.C., provides that before issuing a warrant of seizure of property in any action of foreclosure on personal property a written undertaking on the part of the plaintiff, with sufficient surety, must be given which at least equals the amount claimed in the complaint. The amount of the undertaking here was $21,000, while the amounts claimed in the complaint were $18,200 and $1,499, plus delinquency changes and interest. An amended complaint for the personal property taxes paid by Brunswick in the amount of $4,138.88 was made after the undertaking had been given and the property had been seized by the sheriff under the warrant of seizure.

The undertaking on the original complaint was sufficient as the amount of the undertaking was in excess of the amounts claimed in the original complaint and specified in the warrant. We have not previously interpreted Section 32--20--04, N.D.C.C. Section 6 of Chapter 32--20, N.D.C.C. ...