Chesnut v. Sales

• Decision Date: 15 June 1914
• Docket Number: 3386.
• Citation: 141 P. 986,49 Mont. 318
• Parties: CHESNUT v. SALES.
• Court: Montana Supreme Court

141 P. 986

49 Mont. 318

CHESNUT v. SALES.

No. 3386.

Supreme Court of Montana

June 15, 1914

Appeal from District Court, Gallatin County; Albert P. Stark, Judge.

Action by Ben Chesnut against A. H. Sales. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Geo. D Pease, of Bozeman, for appellant.

Walter Aitken, of Belgrade, for respondent.

SANNER J.

The appellant, Ben Chesnut, as the owner of two certain mules and a set of harness, brought an action in the district court of Gallatin county against the respondent, A. H. Sales, to recover the possession of the same, with damages for the detention thereof. After issue joined and a trial upon the merits, Chesnut had judgment for the return of the property and damages, whereupon he demanded the return of the mules. Sales refused to deliver, but appealed to this court giving the stay bond required by section 7103, Revised Codes. The appeal was unsuccessful (Chesnut v. Sales, 44 Mont 534, 121 P. 481), and upon remission of the cause to the district court, Sales returned the property and otherwise satisfied the judgment. Thereafter Chesnut brought this action to recover damages for the wrongful withholding of the mules pending the appeal. The defense is that the retention of the mules was lawful and justifiable, the execution of judgment having been stayed pending the appeal as provided by law. The cause was submitted to the court sitting without a jury, upon the pleadings and upon a stipulation to the effect "that if as a matter of law, the plaintiff is entitled to recover in this action at all, he is entitled to recover the sum of one dollar and one-half for each and every day * * * from the 17th day of May, 1911, to the 26th day of February, 1912; * * * that during all of said period defendant was the owner and entitled to the possession of said mules, except in so far as his right to the possession thereof had been suspended and stayed by the appeal." Judgment was entered that Chesnut take nothing, and awarding costs to Sales. A motion for a new trial was denied, and Chesnut appeals from such denial as well as from the judgment.

It is conceded by both sides that but one question is presented viz., Can a party who had judgment for the recovery of personal property and damages for its detention up to verdict, and whose judgment after affirmance by this court has been satisfied, maintain a separate action for the detention of such property pending an appeal from the judgment? Upon the solution of this question the authorities are at variance. Conspicuous among those which hold with the respondent is Bank v. Blye, 123 N.Y. 132, 25 N.E 208, a case resembling that at bar in every essential save only the demand after judgment. The court said:

"The complaint discloses a single tort, which has formed the subject of an action and been redressed by a judgment therein. It alleges no new or separate demand, but simply a continuance of the refusal to obey it, after judgment and pending the appeals therefrom. If the defendant's continued possession during that interval was a wrong at all, it was not new or separate, but a continuance of that sued upon, and dependent upon the demand proved in that action. At the most, the complaint shows an extension of the damages beyond the date of the trial judgment, and growing out of the delay inseparable from the defendant's right of appeal; and so we are required to say, if we affirm this judgment, either that the damages flowing from a single wrong may be divided into two parts, and each part form the subject of a separate action, or that the exercise by the defendant of the right of appeal upon the precise terms and conditions dictated by the law constitutes a new and illegal detention of the property in controversy. The first proposition is of course inadmissible, and the judgment must stand, if at all, upon the second, and that necessarily involves the conclusion that the appeals taken, by reason of the delay which they occasioned, constituted a new detention and a new wrong for which a separate action could be maintained. Neither reason nor authority justify that conclusion. The appeals were taken by the defendant in pursuance of a lawful right and in performance of a clear duty. * * * We cannot admit that the taking of an appeal by the defendant constituted a new and separate detention of plaintiff's bonds because they remained in defendant's possession after delivery to him by the sheriff in accordance with the law of the chosen remedy. If that be so, added perils will surround appeals, and a prolific source of new actions will come into existence, and it will be difficult to say that one class of damages resulting from the law's delay may be recovered and all others be excluded. We think the right of appeal cannot be converted into a tort or wrong, and the delay it produces serve as a basis for a new action, and that the judgment already rendered closed the entire controversy."

To the same effect are Head v. Perry, 1 T. B. Mon. (Ky.) 258; Alderson v. Bigger's Adm'r, 4 Munf. 528; Abbott v. Land & Water Co., 161 Cal. 42, 118 P. 425; Van Horne v. Treadwell, 164 Cal. 620, 130 P. 5.

Impressed as we are by the reasoning of these cases, and realizing too, that no effective appeal was open to respondent at bar unless he kept the property, we are nevertheless of the opinion that the appellant was entitled to recover. The mere fact that the respondent had the lawful right to appeal from the judgment against him does not seem to us decisive. The right of appeal from an adverse decision is not any different in...