Capital Loan & Sav. Co. v. Baltimore & O.R. Co.

• Decision Date: 10 January 1933
• Citation: 184 N.E. 862,44 Ohio App. 251
• Court: Ohio Court of Appeals
• Parties: CAPITAL LOAN & SAVINGS CO. v. BALTIMORE & O. R. CO.

44 Ohio App. 251
184 N.E. 862

CAPITAL LOAN & SAVINGS CO.
v.
BALTIMORE & O. R. CO.

Court of Appeals of Ohio, Fifth District, Licking County.

Jan. 10, 1933.

Action by the Capital Loan & Savings Company against the Baltimore & Ohio Railroad Company. From judgment for defendant, on demurrer to plaintiff's petition, plaintiff brings error.-[By Editorial Staff.]

Affirmed.

[Ohio App. 251]Flory & Flory and C. G. L. Yearick, all of Newark, for plaintiff in error.

Edward Kibler, of Newark, and F. F. Frazier, of Zanesville, for defendant in error.

GARVER, Presiding Judge.

The parties stand in the same relative positions in this court as they did in the lower court, and will be referred to here as plaintiff and defendant.

Plaintiff's petition sets forth that on April 25, 1928, William and Carrie Washington executed to plaintiff their note for $350, due six months after date; that on October 13, 1930, there was unpaid on said note the sum of $325; that to secure the payment of said note the Washingtons executed and delivered to plaintiff their chattel mortgage covering two horses, which said mortgagors had upon the farm in their possession in Licking county, Ohio; that said mortgage was properly sworn to and filed with the recorder of Licking county, and refiled, and was properly on file at the time of the beginning of this action; that on October 13, 1930, a locomotive, operated by the defendant, killed the two horses covered by the mortgage; and that the defendant, Baltimore & Ohio Railroad Company, without the consent or knowledge of the plaintiff,[Ohio App. 252]and without notice of any kind to it, paid to said Washingtons the sum of $135, as the value of said horses, and defendant has failed and refused to account to plaintiff for said sum of $135, although repeated demand for said sum has been made by the plaintiff upon the defendant. There are other allegations in the petition not necessary to be stated here, and a prayer for judgment in the sum of $135, with interest.

Defendant demurred to the petition, the demurrer was sustained and, the plaintiff not desiring to plead further, judgment was entered against it. Plaintiff prosecutes error.

Although the note secured by the chattel mortgage was long past due, no allegations are made in the petition that the plaintiff made any movement toward foreclosing its mortgage or taking possession of the mortgaged property, so we conclude that it allowed the mortgagor to remain in undisputed possession of the...