O'Connor v. Van Hoy

• Decision Date: 18 July 1896
• Citation: 45 P. 762,29 Or. 505
• Court: Oregon Supreme Court
• Parties: O'CONNOR v. VAN HOY et al.

45 P. 762

29 Or. 505

O'CONNOR v. VAN HOY et al.

Supreme Court of Oregon

July 18, 1896

Appeal from circuit court, Sherman county; W.L. Bradshaw, Judge.

Action of replevin by Daniel O'Connor against James M. Van Hoy and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Plaintiff seeks by this action to recover possession of certain personal property, consisting of one Buffalo Pitt engine, one Buffalo Pitt separator, and one Jackson self-feeder. The complaint alleges, in substance: The execution and delivery on March 17, 1893, of a chattel mortgage in Klickitat county Wash., upon this and other property by the defendants to one I.C. Richards, to secure a note of even date, executed by them to Richards, for the sum of $375, and to indemnify and save him harmless from the payment of certain other notes amounting to $950, signed by him for their accommodation; the engine, however, being subject to a prior mortgage to secure the payment of about $800. Subsequently, Richards sold and indorsed the $375 note to the plaintiff. During the summer of 1894, the defendants removed the property sued for into this state; and in November, 1894, plaintiff took possession of it, in Sherman county, and, after advertising it as required by the terms of the mortgage and the laws of this state, in pursuance of the notice, offered it for sale at public auction on the 5th day of December, 1894; and he, being the highest and best bidder, became the purchaser, for $50, and thereby foreclosed the mortgage as to said property. That he is the owner and entitled to the possession of said property. And that on or about June 28, 1895, defendants wrongfully took, and now detain, the same from plaintiff. The answer, in effect, denies all the material allegations of the complaint except the execution of the note and mortgage. It affirmatively alleges an attempt on the part of the plaintiff to sell said property while in the possession of defendants at which attempted sale he assumed to be the purchaser, and that, by reason thereof, the sale is void; that on or about June 25, 1895, plaintiff forcibly took possession of the property; and that, about four days thereafter, the defendants, finding it abandoned, retook it, and are the rightful owners, and entitled to the possession. The defendants set up two further and separate defenses. The first is that, prior to the commencement of the action, they paid to Richards the full amount of said $375 note, and discharged the indebtedness of $950, for the payment of which he was surety, and that plaintiff took the note, with knowledge of such payment and discharge. The second is, in effect, a plea of former adjudication touching the status of the mortgage set up in the complaint, and the property in question, as affected by such mortgage by the superior court of the state of Washington for Klickitat county, in a suit therein pending, wherein the defendants herein were plaintiffs, and the plaintiff herein and I.C. Richards were defendants. By said suit it was, in effect, determined and decreed, the court having jurisdiction of the cause and the parties, that the plaintiffs in that suit were the owners of the property; that all the indebtedness which the mortgage had been given to secure had been paid, except $175, and interest, at 10 per cent. per annum from March 17, 1893, due upon the $375 note; that the plaintiff herein was the sole owner of said note; and that he had, by virtue of said mortgage, a lien upon the property involved in this action to secure the payment thereof. The suit was commenced June 10, and determined July 8, 1895. Thereafter, on July 10, 1895, the defendants in this action paid to plaintiff the sum of $216.08, the amount due upon said note, with interest, which he received and accepted, and thereupon surrendered the note and canceled said mortgage, and thereby plaintiff released and relinquished all claim upon the property. The reply joins issue upon the first cause of defense in toto, practically admits the alleged adjudication, payment, and cancellation of the mortgage of the second cause, but denies that the effect was a release or relinquishment by plaintiff of all claim upon the property sued for, and alleges that, at the time of the alleged payment and surrender of the note and cancellation of the mortgage, this action had been commenced. The parties gave evidence at the trial tending to support their several contentions. The verdict and judgment being for defendants, plaintiff appeals.

C.J. Bright, for appellant.

B.S. Huntington, for respondents.

WOLVERTON J. (after stating the facts.)

The first question made is touching the notice of appeal. It is contended by respondents that it does not specify the errors relied upon with such certainty or particularity as to inform them or the court of the issues to be tried on the appeal. The bill of exceptions consists of what purports to be an extended stenographic report of the trial as it proceeded from first to last, including the instructions to the jury which is certified and signed by the judge of the court below. To illustrate the assignments of error touching the introduction of evidence, we give the following from the notice of appeal: "Plaintiff specifies the following errors committed at the trial of said cause, to which exceptions were allowed, and upon which plaintiff relies upon this appeal, to wit: 'Upon cross-examination, defendants' counsel asked said witness [Richards] the following questions, to wit: "I understand you to say, Mr. Richards, that you did not at that time [March 18, 1893], in the presence of defendants and Mr. Dunbar, at Dunbar's office, in Goldendale, say that the note for $375 was in the Dalles as collateral security, and that the $200 would be credited upon it. (Objected to; irrelevant, immaterial, and incompetent, and not proper cross-examination. Overruled.)" "Didn't you receive from defendant in May, 1893, a note for about $180? (Same objection. Same ruling.)" "Didn't you receive such a note at all? (Same objection. Same ruling.)" Defendants offered copy of mortgage from Van Hoy & Johnson to I.C. Richards, with indorsements thereon. (Objected to, as irrelevant, immaterial, and incompetent, and not properly authenticated. Overruled.) Upon redirect examination of witness [Van Hoy], defendants offered in evidence copy of pleading and decree of superior court of Klickitat county. (Objected to, as immaterial and irrelevant, incompetent, and not properly authenticated. Overruled.)' " Upon turning to the bill of exceptions to determine upon what these assignments of error are based, we find that the first question is nowhere contained therein, the next is followed by the words, "Same objection overruled," and to the third there appears to have been no objection made in any form. Referring...