Dobbins v. Mounce
| Decision Date | 19 May 1897 |
| Citation | 5 Idaho 325,48 P. 1070 |
| Parties | DOBBINS v. MOUNCE |
| Court | Idaho Supreme Court |
REPLEVIN-DEMAND-SALE.-When demand for return of property is necessary, if made on deputy sheriff, who conducted sale of same under chattel mortgage foreclosure, it is sufficient to bind sheriff.
SUFFICIENCY OF COMPLAINT.-The allegations of complaint held sufficient to sustain action, and sufficiently sustained by evidence to warrant the verdict of the jury.
(Syllabus by the court.)
APPEAL from District Court, Nez Perces County.
S. S Denning and Burleigh & Green, for Appellant.
This is an action in detinue brought by the plaintiff Dobbins against the defendant Mounce, sheriff of Nez Perces county, Idaho claiming that on the twenty-eighth day of August, 1894, the plaintiff was the owner of, and is now the owner of, and up to the twenty-eighth day of August was in the possession of and is now entitled to the immediate possession of four hundred bushels of wheat and twenty-two sacks of barley, and certain farm, farmed by plaintiff and owned by one R. E Larcom in Nez Perces county, Idaho and described in the complaint. The defendant answered, denying all the allegations of the alleged complaint, and denying that the wheat was of any greater value than forty dollars. That on the twenty-eighth day of August, 1894, J. L. Hallett & Son placed in his hands as such sheriff, an affidavit and notice of foreclosure (which is set out,) and alleges that he believes that the property described in plaintiff's complaint is some of the property covered by the said chattel mortgage. That he took the said property by reason of the said chattel mortgage. In replevin, as in all other actions the evidence should correspond to the allegations, and be confined to the point in issue. They had failed to identify the property or to prove its value at the time and place of the taking. (5 Am. & Eng. Ency. of Law, tit. "Damages," p. 40, note 1; Woodenware Co. v. United States, 106 U.S. 432 1 S.Ct. 398.) Where the defendant has been guilty of no intentional wrong, according to the best authorities the value of the property in suit is the measure of the damages. (5 Am. & Eng. Ency. of Law, tit. "Damages," p. 37, and authorities cited in note 1; Sedgwick on Damages, 8th ed., sec. 243 et seq.)
James W. Reid, for Respondent.
The appellant admitted by his answer in justification that he took the property by his deputy, who was his agent, and disposed of the same. The goods were in possession of respondent, who claimed them when levied on. No demand was necessary, but demand was made nevertheless. (5 Am. & Eng. Ency. of Law, 5281, note b.) The proof of the taking, the place, the time, the value, the amount and the title was full and conclusive, and uncontroverted. Appellant made no effort to sustain his justification. If any error occurred, it was harmless.
This is an action to recover the possession of four hundred bushels of wheat and twenty-two sacks of barley, or, in case recovery thereof cannot be had, the value of the same, alleged to be $ 163.60, and $ 100 damages alleged to have been sustained by reason of the unlawful taking of said grain. The answer denies that plaintiff is the owner of, or entitled to the possession of, said grain denies that defendant unlawfully or wrongfully took possession of said grain; and denies that plaintiff has sustained any damages by reason of the taking thereof; avers, as a separate defense, that he was the sheriff of Nez Perces county, and that Hallet & Son placed in his hands, as such sheriff, an affidavit and notice of foreclosure of a chattel mortgage which covered, and was a lien upon, said grain; that he proceeded to sell said grain as required by law, and did sell the same, to satisfy said chattel mortgage. The cause was tried by the court with a jury. At the close of plaintiff's evidence the defendant moved the court to direct the jury to bring in a verdict for defendant, which request or motion was denied. Thereupon defendant refused to introduce any evidence. The plaintiff then moved the court to instruct the jury to bring in a verdict in favor of the plaintiff for a return of the grain sued for, or, in case a return could not be had, the value thereof. The court thereupon directed the plaintiff's attorney to prepare a verdict, which was done, and after instructions by the court the jury retired to consider their verdict, and brought in the verdict, prepared as...
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