Capital Lumbering Co. v. Learned

• Decision Date: 26 December 1899
• Citation: 59 P. 454,36 Or. 544
• Parties: CAPITAL LUMBERING CO. v. LEARNED et al.
• Court: Oregon Supreme Court

59 P. 454

36 Or. 544

CAPITAL LUMBERING CO. v. LEARNED et al.

Supreme Court of Oregon

December 26, 1899

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action by the Capital Lumbering Company against Sarah T. Learned and another. Judgment for plaintiff. Defendants appeal. Affirmed.

This is an action to recover the alleged value of certain chattels. The facts are: That plaintiff, a private corporation, having secured a judgment in the circuit court for Marion county against one N.M. Learned for the sum of $500.45, caused an execution to be issued thereon, in pursuance of which John Knight, the then sheriff of said county, seized as the property of said defendant a horse and hack, three calves and a heifer, and advertised the same for sale at public auction. That prior to the day appointed for such sale, Sarah T. Learned, claiming to be the owner of said property commenced an action in said court against Knight to recover the possession thereof, alleging the value of each article the sum of which was $185; and having made the required affidavit, and indorsed thereon a request to the coroner of said county to take the property and deliver it to her, she with one J.B. Stump as surety, executed an undertaking conditioned for the return of the property if a return were adjudged, and for the payment of such sum as might, for any cause, be recovered against her, reciting therein that said property was of the value of $185. The coroner, having approved said undertaking, took the property from the possession of the sheriff, and delivered it to her. That on June 20, 1896, Knight secured a judgment against Mrs. Learned in said action for the recovery of said property of the aggregate value, as alleged in her complaint, of $185, and for the sum of $19.40 costs and disbursements; but said judgment did not provide for the recovery of any sum in case delivery of said property could not be had. That Knight assigned said judgment and undertaking to plaintiff, whereupon this action was commenced to recover the sum of $185 as the value of said property, and $19.40, the amount allowed as costs and disbursements, alleging that defendants had neglected to return any part of said property, or to pay its value. The defendants, denying most of the material allegations of the complaint, averred that, immediately after the judgment in the replevin action was given, Mrs. Learned tendered said property to Knight at the place where it was seized, but that he refused to accept or receive any part thereof. The reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a judgment for the plaintiff in the sum of $204.40, from which the defendants appeal.

W.H. Holmes, for appellants.

R.J. Fleming, for respondent.

MOORE J. (after stating the facts).

It is contended by defendants' counsel that the court erred in striking certain allegations from the answer to the prejudice of their clients. It was alleged therein, in effect, that at the time said property was seized it was in the possession of Mrs. Learned, and that the sheriff, after levying thereon, left it upon her premises, situated about three miles east of Salem, where it has at all times since remained. It is argued that the sheriff not having removed the property when he seized it, it was incumbent upon him, when it was adjudged that he was entitled thereto, to receive it at the same place and in the same condition that it was when his constructive possession was disturbed. The complaint alleged that the sheriff made a valid levy upon the property, and took the same into his possession; and this allegation, not being specifically denied in the answer, is admitted. Hill's Ann. Laws Or. § 94. The affirmative allegation of the answer which the court struck out being inconsistent with such admission, it was immaterial where the property was left by the sheriff upon its seizure. The part of the answer which relates to where the property was to be found after its return was adjudged is important only when the character of the property and the duty of the defendants with respect to its return are considered. When a return of personal property is adjudged in an action for its recovery, it is the duty of the plaintiff, if he has secured possession thereof pending the litigation, and would escape the penalty of his undertaking, to take active measures to redeliver it to the defendant, within a reasonable time, in the same condition as when taken. Cobbey, Repl. § 1182; Parker v. Simonds, 8 Metc. (Mass.) 205; Berry v. Hoeffner, 56 Me. 170. This rule imposes upon the plaintiff in such case the duty of seeking the defendant in the action, and tendering the property to him, if it be readily capable of manual delivery; but if such a course is difficult, by reason of its bulky character, an offer to redeliver it to the defendant is all that the law enjoins. Thus, in an action for the possession of a steam engine, boiler, engine house, office, and hay scales, it was adjudged that the property be returned to the sheriff, who had levied thereon, but had not removed it from the place where it was then situated. The plaintiff offered to return it at the place where it was seized, but the sheriff refused to accept it, and thereafter commenced an action to recover its value, whereupon he was perpetually enjoined from enforcing the alternative judgment; the court holding that the property was of such a cumbrous nature as to render its removal inconvenient, and that the plaintiff had done all that the law required of him in such cases. Frey v. Drahos, 10 Neb. 594, 7 N.W. 319. So, too, in Gans v. Woolfolk, 2 Mont. 458, a carpet containing 600 yards, tacked to a floor, and not removed by the sheriff who seized it, was adjudged to be returned to him, and it was held that the carpet was so bulky as to render it necessary that the parties entitled to it should designate some convenient place to receive it, and, in the absence of such designation, the plaintiff could select a proper place for its delivery. Mr. Justice Blake, speaking for the court, in rendering the decision says: "The carpet was a bulky and cumbersome article, and the respondents were not required to tender it, like money, to the appellants wherever found. They were obliged to deliver the property at some particular place. If the appellants neglected or refused to appoint the place, the respondents had the right to select it, with a reasonable regard for the convenience of the appellants, and there deliver the goods." In McClellan v. Marshall, 19 Iowa, 561, plaintiff, having commenced an action in replevin, obtained the possession of a mare, which, upon the trial, was adjudged to be returned to the defendant, and in complying therewith the mare was driven 40 miles, and tendered to the plaintiff. In the case at bar the property adjudged to be returned was of such character that it could be taken to the sheriff, and, this being so, it was incumbent upon Mrs. Learned to seek that officer at his place of business, and there tender the property to him in the same condition as when she received it. Bank v. Hall, 107 Pa.St. 583. No error was committed, in our judgment, in striking out the allegation referred to from the answer.

It is contended that the court erred in striking out the denial in the answer that the chattels were of the value of $185. It will be remembered that the complaint in the replevin action alleged that the property was of that value and that the undertaking executed to secure the possession of the property contained the same recital. Such averment was binding upon Mrs. Learned, and estopped her from contradicting the value she placed thereon. The defendant Stump, though not nominally a party to the action, became such in effect by signing the undertaking, and is to be treated as in court during the litigation, and, not having objected to the proceedings, is concluded by the judgment rendered against his principal. Cobbey, Repl. § 1313; 20 Am. & Eng.Enc.Law, 1146; 1...