Denver Credit Bureau, Inc. v. Dull

• Decision Date: 18 December 1933
• Docket Number: 13392.
• Citation: 94 Colo. 81,28 P.2d 806
• Parties: DENVER CREDIT BUREAU, Inc., v. DULL et al.
• Court: Colorado Supreme Court

28 P.2d 806

94 Colo. 81

DENVER CREDIT BUREAU, Inc., v. DULL et al.

No. 13392.

Supreme Court of Colorado

December 18, 1933

In Department.

Error to County Court, City and County of Denver; George A Luxford, Judge.

Action by the Denver Credit Bureau, Inc., against L. W. Dull and another. Judgment for defendants, and plaintiff brings error.

Reversed.

James R. Hoffman, of Denver, for plaintiff in error.

HILLIARD Justice.

Replevin action in aid of foreclosure of a chattel mortgage. Judgment for defendants, and plaintiff assigns error.

It appears that May 28, 1932, defendants executed their note in the sum of $195, with interest, to the order of Public Industrial Bank, payable in monthly installments, and secured it by a chattel mortgage on various items, including an automobile; that on allegation of default the payee sought to foreclose in manner as here, but suffered nonsuit because demand for possession had not preceded the action; that subsequent to the judgment of nonsuit, default still obtaining, the original holder, for value, assigned the note to plaintiff, which seeks reversal of an adverse judgment in its foreclosure action.

At the close of plaintiff's case, motion of defendants for judgment, reasons not formally stated, was sustained. We gather from the record generally, however, that the basis of the court's judgment was that the former adjudication barred this action, or that defendants had discharged their obligation. We think that on neither ground may the determination be approved.

It is clear that, at the original trial, judgment of nonsuit, which was moved by defendants, was not on the merits of the case but on the sole premise that demand for possession had not been shown. In such situation, the judgment sought to be interposed in bar of the present action is not res judicata, and should have been disregarded. Crowe v Hamilton Nat. Bank, 74 Colo. 407, 222 P. 394; Denver & Rio Grande R. Co. v. Iles, 25 Colo. 19, 53 P. 222; Hallack v. Loft, 19 Colo. 74, 34 P. 568; Norton's Estate v. McAlister, 22 Colo.App. 293, 123 P. 963; 9 R.C.L. p. 209, § 30.

On the claim of payment, it appears that, shortly after the note was given, and Before default, the makers delivered the automobile mentioned in the chattel mortgage to one of the officers of the payee, which, defendants say, he was to sell for their account, for not less than $175, to be credited on their obligation; that...