Butin v. Rothman

• Decision Date: 17 June 1957
• Docket Number: No. 18095,18095
• Citation: 135 Colo. 477,312 P.2d 783
• Court: Colorado Supreme Court
• Parties: F. B. BUTIN and Amy Butin, Plaintiffs in Error, v. Paul ROTHMAN and L & H Coffee Shop and Tavern, Inc., Defendants in Error.

Page 783

312 P.2d 783

135 Colo. 477

F. B. BUTIN and Amy Butin, Plaintiffs in Error, v. Paul ROTHMAN and L & H Coffee Shop and Tavern, Inc. Defendants in Error.

No. 18095.

Supreme Court of Colorado, In Department.

June 17, 1957.

Emory L. O'Connell, Denver, for plaintiffs in error.

John T. Dugan, Denver, for defendants in error.

HALL, Justice.

We will refer to the parties as they appeared in the trial court where plaintiffs in error were defendants and defendant in error, Paul Rothman, was plaintiff. Defendant in error L & H Coffee Shop and Tavern, Inc., is no longer a party to the proceedings.

Plaintiff brought an action in replevin to obtain possession of personal property consisting of tavern furniture, fixtures, equipment and utensils then in possession of defendants; plaintiff claims he is entitled to possession of the property by virtue of a chattel mortgage executed by L & H Coffee Shop and Tavern, Inc., as mortgagor, said mortgagor having defaulted in payment thereof. Defendants deny plaintiff's right to possession and allege ownership and the right to possession in themselves. Trial was to a jury. The plaintiff was called as a witness to testify in his own behalf; a review of his testimony fails to disclose presentation of any facts that might be of appreciable help in determining who is the owner of or presently entitled to possession of the property involved. Plaintiff offered, and secured the admission in evidence of a past due and unpaid promissory note payable to plaintiff, and a document labelled 'Chattel Mortgage', both executed by L & H Coffee Shop and Tavern, Inc. This 'Chattel Mortgage' described the property taken in replevin. No evidence was offered showing title or right of possession in L & H Coffee Shop and Tavern, Inc. Plaintiff also called defendant, F. B. Butin, as a witness and subjected him to cross examination. The purpose of this cross examination, if any, remains obscure, the witness divulging nothing to help plaintiff's cause. During this cross examination the trial judge made the following statement:

'The Court: (Addressing plaintiff's counsel) I do not know what your purpose is in cross examining this man now. You have made a prima facie case.' (Emphasis supplied.)

and later,

'The Court: The court believes it has discretion to control the order of the introduction of evidence in this case and examination of witnesses, and we believe that the matters being gone into by Mr. Dugan at this time under the Rules which permit the calling of an adverse party for leading questions is disrupting the trial and we order that examination discontinued.' (Emphasis supplied.)

Thereupon the plaintiff rested.

Defendants moved for a non-suit and assigned as grounds therefor (1) the invalidity of the 'Chattel Mortgage'; (2) the failure to show any title in the mortgagor, L & H Coffee Shop and Tavern, Inc. The motion was denied and defendants elected to stand on their motion. The court thereupon entered judgment awarding possession to the plaintiff.

Defendants are here on writ of error contending that the motion for non-suit should have been granted. We agree that in the then state of the record, the motion should have been granted but we are confronted with the fact that the trial judge twice interrupted plaintiff in presentation of his evidence, first, by erroneously stating 'You have made a prima facie case'; second, by advising plaintiff's counsel during cross examination of a defendant that the cross examination as then being conducted '* * * is disrupting the trial and we order that examination discontinued.' These two pronouncements of the trial court may explain plaintiff's failure to prove his case. The first pronouncement was no doubt very comforting to plaintiff's counsel, and as far as the trial court was concerned he might then well have rested. But wanting to be doubly sure, he proceeded further without tangible result and was finally ordered by the trial judge to discontinue further disruption of the trial by cross examination of the defendant. First lulled into a feeling of security, then being admonished to discontinue further cross examination, plaintiff rested without proving his right to possession.

The most that can be said of plaintiff's case is that he proved that he held a past due note secured by chattel mortgage upon the property held by defendant, both signed by L & H Coffee Shop and Tavern, Inc., and had demanded possession from defendants. There was no evidence that L & H Coffee Shop and Tavern, Inc., owned the property at the time of the execution of the mortgage, or at all. Plaintiff's counsel and the trial judge apparently assumed that admission in evidence of a promissory note and chattel mortgage executed by a third person, without proof of such third person's title, is sufficient to establish the mortgagee's right to possession and to warrant replevin against a defendant in possession. The rule is otherwise.

The burden rested upon the plaintiff to prove his right to possession. The defaulted note and chattel mortgage may have been sufficient to establish his right to possession as against the mortgagor, but it proved nothing as against the defendants in possession. Plaintiff could have no better title than L & H Coffee Shop and Tavern, Inc., makers of the note and chattel mortgage. For some undisclosed reason plaintiff made no effort to show that L & H Coffee Shop and Tavern, Inc., ever owned the property or had any right to possession.

In South Denver Bank v. Guardian Trust Company, 86 Colo. 121, 278 P. 590, 591, we have a situation very similar to that presented here. The plaintiff, holder of a note and chattel mortgage on an automobile, executed by one Stanton, brought an action in replevin to recover the automobile then in possession of the defendant. Plaintiff produced as evidence the note and chattel mortgage and made a feeble and ineffectual effort to prove that Stanton owned, or had some...