Chrysler Credit Corp. v. Beagles Chrysler-Plymouth

• Decision Date: 29 November 1971
• Docket Number: CHRYSLER-PLYMOUTH,No. 9291,9291
• Parties: CHRYSLER CREDIT CORPORATION, Plaintiff-Appellee, v. BEAGLESet al., Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 160

491 P.2d 160

83 N.M. 272

CHRYSLER CREDIT CORPORATION, Plaintiff-Appellee, v. BEAGLES CHRYSLER-PLYMOUTH et al., Defendants-Appellants.

No. 9291.

Supreme Court of New Mexico.

Nov. 29, 1971.

[83 NM 272] Morris Stagner, Clovis, for defendants-appellants.

Rowley, Hammond, Murphy & Rowley, Richard F. Rowley, II, Clovis, Anderson, Edwards & Warnick, Lubbock, Tex., for plaintiff-appellee.

OPINION

McMANUS, Justice.

Appellee, hereinafter referred to as Chrysler Credit, instituted a suit in replevin against appellants, hereinafter referred to as Beagles, for recovery of certain motor vehicles in possession of Beagles under a 'floor plan' financing arrangement with Chrysler Credit. Included in the complaint was a prayer for recovery on notes executed by Beagles, in addition to the replevin action. Certain vehicles were seized under the writ of replevin; other vehicles were not seized for the reason they had been sold to third parties by Beagles; also, other vehicles were in transit. The parties stipulated that the vehicles seized pursuant to the writ of replevin were subsequently sold and the proceeds applied to the indebtedness of Beagles. The trial was held before the court and judgment was granted against Beagles for a deficiency of $11,621.42, plus $165.05 'shrinkage' on 1971 model vehicles which had not been replevied because they had not reached Beagles' possession but were stopped in transit. In addition, the court granted appellee judgment for $36,646.71, being the amount claimed for vehicles disposed of by Beagles to third parties. In addition, accumulated interest, plus storage, was awarded, as well as attorney fees. The sum of the above, less $48.46 allowed as a setoff resulted in a judgment of $57,075.41. Chrysler Credit presented a cost bill which included a bond premium for a replevin bond in the amount of $3,674.00. The court also awarded this amount over the objection of Beagles.

Beagles' claim that the trial court erred and was without jurisdiction to enter judgment assessing damages in favor of Chrysler Credit in excess of that permitted in § 22--17--1, N.M.S.A. (1953 Comp.). The section referred to reads as follows:

'Any person having a right to the immediate possession of any goods or chattels, wrongfully taken or wrongfully detained, may bring an action of replevin for the recovery thereof and for damages sustained by reason of the unjust caption or detention thereof.'

We have no quarrel with the above statute or its contents. A reading of Chrysler Credit's complaint shows that their claim, in addition to replevin of vehicles in Beagles' possession, also prays for payments due under promissory notes covering vehicles sold to third persons and not under the control or possession of Beagles. Chrysler Credit also claims moneys due from Beagles as regards vehicles in transit and not yet received by Beagles. Beagles' answer was in the nature of a general denial.

The matters referred to above were not called to the attention of the trial court and were brought up for the first time on this appeal. See Barnett v. Cal M, Inc., 79 N.M. 553, 445 P.2d 974 (1968), wherein the matter not brought to the attention of the trial court cannot be raised for the first time on appeal. Concerning jurisdiction, all parties in their respective findings conceded that the court had jurisdiction of the matters before it.

The only statutory authority in New Mexico dealing with costs of bonds is § 28--1--3, N.M.S.A. (1953 Comp.). This section makes no specific reference to replevin bonds. The replevin section makes no reference to costs. Notwithstanding, the costs were properly allowed since § 28--1--3, supra, is general enough to...