Crocker v. Burns

• Decision Date: 13 February 1899
• Parties: CROCKER v. BURNS.
• Court: Colorado Court of Appeals

56 P. 199

13 Colo.App. 54

CROCKER v. BURNS.

Court of Appeals of Colorado

February 13, 1899

Appeal from district court, Arapahoe county.

Action by Daniel C. Burns against William Crocker, constable. There was a judgment for plaintiff, and defendant appeals. Affirmed.

McIntyre & Bray, for appellant.

Daniel C. Burns and Talbot, Denison & Wadley, for appellee.

WILSON J.

The material facts in this case, so far as can be gathered from the record, which is not very full and complete, are the following: Dr. A.J. Beavis, being indebted to Charles Denison in the sum of $350, as evidenced by his promissory note, to secure the payment of the same executed a chattel mortgage upon a lot of medical books, surgical instruments, and office furniture. Subsequently, before its maturity, Denison assigned the note to plaintiff, Burns. Upon the maturity of the debt, payment not being made, plaintiff demanded possession of the mortgaged chattels, and, failing to secure them, promptly instituted a replevin suit against Beavis before a justice of the peace. The writ was executed, but the defendant gave a forthcoming bond, and retained possession of the goods. The case coming on for trial, and the evidence being submitted, the justice of the peace took the matter under advisement. In a few days thereafter, on January 28 1896, the justice rendered judgment dismissing the suit on the ground that the weight of the evidence showed the chattels to be of such a value as exceeded his jurisdiction. As to whether plaintiff was present when this judgment was rendered, we are not advised by the record. Thereafter however, and on the same day, the defendant Beavis and his attorney appeared at the office of another justice, a few blocks distant, and before him defendant Beavis confessed judgment in favor of one A.B. Sullivan for the sum of $200 his attorney testifying in behalf of Sullivan. Execution was immediately issued, and delivered to defendant Crocker, a constable, and the same officer who had served the writ of replevin a few days previously in the suit of plaintiff Burns, for possession. About 5 o'clock on the same afternoon, defendant, by virtue of it, made what he claimed to be a levy upon the chattels covered by the chattel mortgage to Denison. There is very serious question as to whether this pretended levy was a valid and legal one, and as to whether, by virtue thereof, defendant acquired possession of the property as against this plaintiff; but, in the view which we take of this case, this is immaterial, and will not be discussed. On January 30th plaintiff demanded possession of the goods from defendant Crocker, and, upon his refusal to surrender them, on the next day instituted this suit in replevin in the county court. Judgment was there rendered in favor of plaintiff, and, upon defendant's appeal to the district court, plaintiff again prevailed. From this latter judgment, defendant brings the case here on appeal.

Defendant claims that the allegation in the complaint that plaintiff was the owner of the property was an allegation of absolute ownership, and was not supported by the evidence, which he contends showed special ownership by virtue of the chattel mortgage. On condition broken, the legal title to the chattels covered by a chattel mortgage becomes absolute in the mortgagee. Newman v. People, 4 Colo.App. 50, 34 P. 1006; Jones, Chat.Mortg. § 699. Especially is this the case where, as in this instance, the mortgagee had possession of the mortgaged property after forfeiture. He must be held to have had such possession by virtue of the execution of the writ of replevin issued by the justice. He was deprived of the actual continued custody only by the giving of the forthcoming bond, which was the statutory privilege of the defendant. Under these circumstances, whatever rights accrued to plaintiff by virtue of taking possession after forfeiture remained with him unless surrendered or abandoned by him voluntarily, or lost through some negligence or default of his. In any event, if plaintiff's title had been only that of special ownership, the statute does not require him to set forth the full character of his ownership; and we think that, under such an allegation as this complaint contained, evidence of special ownership would have been admissible. The gist of the action was to determine in whom was the right to possession,--the plaintiff seeking to recover possession of property which was alleged to be unlawfully withheld from him by defendant.

Defendant also urges that plaintiff could not maintain the...