Carver v. Ketchum

• Court: Idaho Supreme Court
• Writing for the Court: BUDGE, C. J.
• Citation: Carver v. Ketchum, 53 Idaho 595, 26 P.2d 139 (Idaho 1933)
• Decision Date: 17 October 1933
• Docket Number: 6028
• Parties: J. A. CARVER, Administrator of the Estate of E. G. ROBERT, Deceased, Appellant, v. I. J. KETCHUM. Respondent

26 P.2d 139

53 Idaho 595

J. A. CARVER, Administrator of the Estate of E. G. ROBERT, Deceased, Appellant, v. I. J. KETCHUM. Respondent

No. 6028

Supreme Court of Idaho

October 17, 1933

CONVERSION-NONSUIT-MOTION GROUNDS FOR.

1. Insufficiency of complaint held not ground for nonsuit (I. C A., sec. 7-705).

2. Allegation in answer that complaint failed to state cause of action cannot be considered as demurrer to complaint.

3. Objection to introduction of any evidence does not constitute ground for nonsuit, since grounds are statutory and exclusive (I. C. A., sec. 7-705).

4. Movant must point out particulars wherein evidence is insufficient, when insufficiency of evidence is relied on as ground for nonsuit (I. C. A., sec. 7-705).

5. Mortgagee taking note and chattel mortgage, after filing of replevin action against mortgagor, acquired no greater interest in mortgaged property than mortgagor had.

6. Title of plaintiff in replevin and his right to possession of property under judgment related to date of commencement of replevin action.

7. Where defendant in replevin action executed mortgage on property involved therein, during replevin action, and mortgagee attempted to acquire title by foreclosure during replevin action, mortgagee became privy to judgment subsequently entered in favor of plaintiff in replevin action, and was bound thereby.

8. In action for conversion of oil-well casing and other equipment plaintiff's evidence of title raised jury question.

9. "Conversion" is dealing by person with chattels not belonging to him, in manner inconsistent with rights of owner.

10. Where there has been positive act of dominion over another's property, unauthorized by owner defendant's intention, good or bad faith and his knowledge or mistake are immaterial, as regards owner's right to sue for conversion.

11. Where defendant denied plaintiff's claim of title to personal property and asserted ownership and title in himself, demand was unnecessary before suing for conversion.

12. In action for conversion of oil-well casing and other equipment, evidence of value thereof held for jury.

13. On motion for nonsuit, question is whether plaintiff has made prima facie case (I. C. A., sec. 7-705).

14. In action for conversion of oil-well casing and other equipment, evidence of conversion made case for jury, and court improperly granted motion for nonsuit.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action in conversion. Judgment for defendant. Reversed and remanded, with instructions.

Reversed and remanded, with instructions. Costs awarded to appellant.

F. E. Tydeman, for Appellant.

The insufficiency of the complaint to state a cause of action is not ground for dismissal or nonsuit. (Ludwig v. Ellis, 22 Idaho 475, 126 P. 769; Strong v. Western Union Tel. Co., 18 Idaho 389, 100 P. 910, Ann. Cas. 1912A, 55, 30 L. R. A., N. S., 409; Mole v. Payne, 39 Idaho 247, 227 P. 23.)

A motion for a nonsuit must specifically set forth the grounds relied on. When insufficient evidence is relied upon, motion must specify wherein evidence is insufficient, and if it does not, it should be denied. (Idaho Merc. Co. v. Kalanquin, 7 Idaho 295, 62 P. 925; Mole v. Payne, supra; Magee v. Hargrove Motor Co., 50 Idaho 442 296 P. 774.)

The critical date in determining the question of a purchaser's privity is the commencement of a suit rather than the date of adjudication, except that this may be effected by statutes governing lis pendens. ( Confectioners' Mach. etc. Co. v. Racine Engine & Mach. Co., 163 F. 914, 95 C. C. A. 671.)

A judgment adjudicating the title or right to possession of personalty is conclusive on these matters in subsequent litigation between the parties and their privies. ( Caperton v. Schmidt, 26 Cal. 479, 85 Am. Dec. 187; Herriter v. Porter, 23 Cal. 385; Rauer v. Rynd, 27 Cal.App. 556, 150 P. 780.)

W. H. Witty, for Respondent.

BUDGE, C. J. Givens, Morgan, Holden and Wernette, JJ., concur.

OPINION

BUDGE, C. J.

This action is one in conversion. The cause was tried by the court and a jury upon the amended complaint of appellant and respondent's amended answer. At the close of appellant's evidence a motion for nonsuit was sustained and judgment was entered thereon, from which judgment this appeal is prosecuted.

Appellant assigns as error the action of the trial court in granting the motion for nonsuit, in dismissing the action and in considering matters not raised by defendant's motion for nonsuit.

The first ground of defendant's motion for nonsuit is "that the complaint in this case does not state facts sufficient to constitute a cause of action." Appellant's contention is that the insufficiency of the complaint is not a ground upon which a motion for nonsuit can be predicated, while respondent's position is that where the insufficiency of the complaint is challenged by demurrer or answer, the answer alleging the insufficiency, and either or both are overruled by the court, the insufficiency of the complaint is a ground for nonsuit.

I. C. A., sec. 7-705, provides: "An action may be dismissed, or a judgment of nonsuit entered, in the following cases: . . . . " and the cases enumerated do not cover the objection that the complaint does not state facts sufficient to constitute a cause of action. In other words, the insufficiency of the complaint is not a ground upon which a motion for nonsuit may be based. (Ludwig v. Ellis, 22 Idaho 475, 126 P. 769; Strong v. Western Union Tel. Co., 18 Idaho 389, 109 P. 910, Ann. Cas. 1912A 55, 30 L.R.A. (N.S.) 409; Mole v. Payne, 39 Idaho 247, 227 P. 23.) We do not understand that an allegation in the answer that the complaint fails to state a cause of action can be considered as a demurrer to the complaint, nor that the objection to the introduction of any evidence constitutes a ground for a nonsuit, particularly in view of the fact that the grounds are statutory and exclusive. (I. C. A., sec. 7-705.)

The second ground of the motion for nonsuit is "that the plaintiff has not made a prima facie case here sufficient to go to the jury." The motion did not point out the particulars wherein the evidence was insufficient, as this court has held is a requisite when insufficiency of the evidence is relied on. (Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925; Mole v. Payne, supra; Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 227 P. 29; Magee v. Hargrove Motor Co., 50 Idaho 442, 296 P. 774.)

Defendant urged as the third ground for his motion for nonsuit "that the plaintiff has wholly failed to establish title to the property involved in this case sufficient to go to the jury." On August 13, 1930, Robert commenced an action against the Norton Gas & Oil Company and others to replevy the property herein involved. During the pendency of the replevin action, and on November 1, 1930, the Norton Gas & Oil Company executed a note, and as security therefor executed a chattel mortgage upon the property herein involved, in favor of respondent and delivered the same to him. On June 23, 1931, judgment was entered in the replevin action in favor of Robert. Respondent foreclosed his chattel mortgage and claims title thereunder, admitting that the judgment rendered and entered in favor of Robert and against the gas and oil company was binding and an adjudication of the ownership and right to the possession of the property in Robert as against the oil company. Appellant, having taken the note and chattel mortgage by virtue of which he seeks to establish ownership in the property, subsequent to the filing of the action by Robert against the Norton Gas & Oil Company, became a privy of the Norton Gas & Oil Company and acquired no greater right, title or interest in and to the mortgaged property than the Norton Gas & Oil Company had at the time the note and mortgage were executed and delivered to him. The rule would seem to be that every person is a privy to a judgment or decree who has succeeded to an estate or interest held by one who was a party to such judgment or decree, if the succession accrued subsequent to the commencement of the action. Privity to the judgment in such case implies a relationship by succession or representation between the parties to the second action and the party to the prior action in respect to rights adjudicated in the first action. (34 C. J. 984; Smith v. Kessler, 22 Idaho 589, 127 P. 172.) In Confectioners' Mach. & Mfg. Co. v. Racine E. & M. Co., 163 F. 914, 918, it is held:

"The date upon which the proposition must turn is the commencement of the suit . . . . and not the date of the adjudication therein."

The title of Robert and his right to possession of the property under his judgment would relate to the date of the commencement of the action and not merely from the date of the judgment decreeing the ownership to be in him. Appellant, having attempted to acquire title to the property by foreclosure, subsequent to the filing of the suit by Robert, thereby became a privy to the judgment subsequently entered in favor of Robert and was bound by that judgment.

In addition to the introduction of the judgment, to which reference has been made, there was further testimony to the effect that Robert bought the property; that he used it at the well; and that it had been provided by agreement that he should furnish the property, consisting of oil-well casing and other equipment used in connection therewith. No inference could be drawn from the evidence submitted upon this phase of the case that would justify the conclusion that Robert was not the owner and entitled to the possession of the property involved. At least there was sufficient evidence to overcome the assault of the ...