Buchanan v. Scandia Plow Co. of Rockford, Ill.

• Decision Date: 11 March 1895
• Citation: 39 P. 899,6 Colo.App. 34
• Parties: BUCHANAN v. SCANDIA PLOW CO. OF ROCKFORD, ILL.
• Court: Colorado Court of Appeals

39 P. 899

6 Colo.App. 34

BUCHANAN v. SCANDIA PLOW CO. OF ROCKFORD, ILL.

Court of Appeals of Colorado

March 11, 1895

Appeal from district court, Sedgwick county.

Action by the Scandia Plow Company of Rockford, Ill., against Dixon Buchanan. From a judgment for plaintiff, defendant appeals. Reversed.

An action in replevin, brought by appellee (plaintiff) against appellant (defendant) to recover a lot of farming implements and machinery. The complaint was in the usual form. Defendant answered--First, denying generally the allegations of the complaint; second, that he was sheriff of Logan county, and was in the possession of the goods by virtue of a writ of execution issued out of the county court of the county upon a judgment in favor of the Keokuk Stove Works Company against the goods of Gordon & Chindgren, and that the goods were those of that firm at the time of the levy. In reply it was denied that the goods were the property of Gordon & Chindgren, and denied that the Keokuk Stove Works recovered a judgment against Gordon & Chindgren, or had judgment at the time of the pretended levy, and that defendant ever levied any execution upon the property. A jury was called and impaneled to try the case, all the evidence of the parties introduced, and the court, upon the close of the testimony, instructed the jury to find for the plaintiff which was done, and judgment entered for the plaintiff, from which an appeal was taken to this court.

J.S Carnahan and Chas. L. Allen, for appellant.

J.B Sweet, for appellee.

REED J. (after stating the facts).

The traverse of the allegations of the complaint put the plaintiff upon its proof of title or right to the possession of the chattels. The first fact attempted to be established was that the goods were furnished by the plaintiff to Gordon & Chindgren; that the sale of them was not absolute, but conditional, and no title ever passed. Second. That previous to the alleged levy the goods were redelivered by Gordon &amp Chindgren to the plaintiff, possession taken, the goods separated from the balance of the stock, placed in a shed upon the premises of Gordon & Chindgren by the agent of the plaintiff, and the shed locked. Third. That the alleged judgment of the Keokuk Stove Company against Gordon & Chindgren was void; consequently, that the writ of execution was also void.

It is urged that the court erred in directing a verdict in favor of the plaintiff. It is evident that the court decided as matter of law that the alleged judgment and writ of execution were void, and that, the defendant's attempted justification under them having failed, the defendant claiming no right to the possession except under them, the right of the plaintiff was established; hence all that was necessary was to direct a verdict. This was erroneous. It left the issues in regard to the ownership of plaintiff and its right of possession untried. Plaintiff, to maintain its action, must have primarily and affirmatively established its title to or right to possession of the goods. Failing to do so, no recovery could be had. That title depended upon establishing one of two facts,--either that the original sale by the plaintiff to Gordon & Chindgren was conditional, and that plaintiff remained the owner, and that no title had passed, or that Gordon & Chindgren had reinvested the plaintiff with the title by turning over the goods in discharge of their indebtedness, or in payment of the same, and that the plaintiff had so taken them, and that the possession had been taken by the plaintiff, and was exclusive of any possession or control by Gordon & Chindgren. These questions of fact were, under the evidence, and proper instructions of the court, to be found by the jury, and must have been found regardless of the question of the validity of the judgment. The allegation in the complaint was "that plaintiff was the owner, and entitled to the immediate possession." This was traversed by the answer, and must have been found by the jury. In the special answer it was averred that the goods were the property of Gordon & Chindgren. It is a good defense to an action of replevin that at the time the action was brought the plaintiff had no right to the possession. Clark v. West, 23 Mich. 242; Belden v. Laing, 8 Mich. 500. "A plaintiff in replevin must stand on his title, and any defense going to impeach his title is proper." The plea of property imposes upon the plaintiff the necessity of establishing it and the right of exclusive possession. Cobbey, Repl. § 784. "Any defense which controverts plaintiff's right of possession at the time the suit was commenced is allowable, and, if the question raised by plaintiff is one of title, any defense that shows title in some one else is proper." Id. § 783, and cases cited. By the special plea or answer it is averred that the property was that of Gordon & Chindgren, and there was an attempted justification. "When the property belongs to a third party, the plaintiff cannot recover. Anything going to show that the plaintiff had no right to the possession when he commenced his suit, is a complete bar to the action." Id. § 785; Clark v. West, supra; Belden v. Laing, supra; Delaney v. Canning, 52 Wis. 266, 8 N.W. 897; Holderman v. Manier, 104 Ind. 118, 3 N.E. 811. The court properly found that the alleged judgment and writ of execution under which the defendant attempted to justify were void. To avail as justification under plea of legal process, the writ must be valid and legal. Griffith v. Smith, 22 Wis. 646; Gist v. Cole, 2 Nott & McC. 456; Dayton v. Fry, 29 Ill. 525.

It is contended upon the part of app...