Fed. Nat'l Bank of Shawnee v. Lindsey
| Decision Date | 23 April 1935 |
| Docket Number | Case Number: 24587 |
| Citation | 172 Okla. 30,43 P.2d 1036,1935 OK 455 |
| Court | Oklahoma Supreme Court |
| Parties | FEDERAL NATIONAL BANK OF SHAWNEE v. LINDSEY |
¶0 1. Trover and Conversion - Allegation and Proof of Appropriation Without Owner's Consent.
Where a party sues for conversion of his property, he must allege and prove that it was taken or appropriated without his consent.
2. Same - "Conversion" Defined.
Conversion is any distinct act of dominion wrongfully asserted over another's personal property in denial of or inconsistent with his rights therein.
3. Replevin - Sale of Property Held Under Replevin Bond as "Conversion."
Where property is held by a party under bond in a replevin action, conditioned for the redelivery of the specific property in the event he should not prevail in the action, such property is to be considered in custodia legis, the same as if the actual possession was with the officer, and the sale of the property pending the suit, while in custodia legis, by the plaintiff constitutes conversion.
Appeal from Superior Court, Seminole County; C. Guy Cutlip, Judge.
Action by the Federal National Bank of Shawnee against P. Lindsey for replevin of personal property; answer and cross-petition by defendant for conversion and praying for damages, actual and punitive. Judgment for defendant on his cross-petition, and plaintiff appeals. Affirmed.
W.L. Chapman and M.M. Chapman, for plaintiff in error.
Thos. J. Horsley, for defendant in error.
¶1 The parties to this appeal occupy the same position they occupied in the lower court, and will be referred to as plaintiff and defendant.
¶2 This action was commenced in the superior court of Seminole county, Okla., by the plaintiff on January 11, 1932, by filing a petition in replevin based on a note and chattel mortgage, and on the same day the plaintiff filed an affidavit and bond in replevin and the court clerk issued a writ of replevin for all the personal property described in the petition and chattel mortgage attached thereto. Thereafter, on February 10, 1932, the defendant filed a special appearance and motion to quash the writ of replevin, which upon hearing, on March 12, 1932, the court sustained and entered an order quashing, setting aside, and holding for naught the writ of replevin. Thereafter the defendant filed an answer to the plaintiff's petition consisting of an unverified general denial and a cross-petition alleging wrongful conversion of all the personal property described in the petition and in addition two bales of cotton and praying for judgment for $1,145 actual damages and $1,000 punitive damages. Thereafter the plaintiff filed a reply and an answer to the cross-petition of the defendant, denying conversion of the said personal property, but admitting that it had four bales of cotton instead of two bales and claiming a lien thereon. To the answer of the plaintiff to the cross-petition of the defendant, the defendant filed a reply consisting of a general denial of the facts alleged in said answer justifying the taking of the personal property under the writ of replevin and alleging that said property so taken was sold by the plaintiff prior to securing judgment in the replevin action, thereby converting the same, and the defendant admitted that the plaintiff had four bales of cotton instead of two bales. Trial was had to the jury and a verdict rendered in favor of the defendant on his cross petition for $300, on which verdict judgment was rendered by the court, and within the time provided the plaintiff filed a motion for new trial, which was duly overruled and the plaintiff appealed, filing a petition in error under five subdivisions:
¶3 1. Said court erred in overruling motion of plaintiff in error for new trial. And the grounds for motion for new trial are as follows:
¶4 2. The court erred in giving instructions 3, 4, 5, 6, and 7.
¶5 3. Said court erred in admitting evidence on the part of defendant in error.
¶6 4. Said court erred in refusing and ruling out competent and legal evidence on the part of plaintiff in error.
¶7 5. That said court erred in not sustaining the demurrer of the plaintiff to the evidence of the defendant.
¶8 Upon trial of said cause, the jury found for the defendant in the sum of $300.
¶9 The plaintiff has presented its argument under four propositions, presenting under "Proposition One" its argument to subdivisions 1, 3, and 4; under "Proposition Two" its argument to subdivision 2; and it is not clear what was intended to be discussed under "Proposition Three" and "Proposition Four," but inasmuch as the plaintiff refers to the discussion under "Proposition One," we will discuss the grounds for its petition in error under two propositions, first discussing its grounds Nos. 1, 3, 4, and 5.
¶10 It appears that the plaintiff's first contention is that the court erred in admitting evidence to the value of the cotton, and we think it is sufficient to say that the record discloses that no objection was made by the plaintiff to the introduction of this evidence.
¶11 The plaintiff's second contention appears to be that conversion of four bales of cotton would not lie unless the evidence shows that it was "taken and appropriated" without the consent of the defendant, citing Mason et al. v. Nibel, 129 Okla. 7, 263 P. 121, the third syllabus of which reads:
"Where a party sues for conversion of his property, he must allege and prove that it was taken and appropriated without his...
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...accord Okla. Unif. Jury Instr.–Civ. 3d # 27-1 (rev. 2009).40 Steenbergen , 1987 OK 122, ¶ 9, 753 P.2d at 1332 (citing Fed. Nat'l Bank of Shawnee v. Lindsey , 1935 OK 455, 172 Okla. 30, 43 P.2d 1036 ; U.S. Zinc Co. v. Colburn , 1927 OK 76, 124 Okla. 249, 255 P. 688 ; Stack v. Gudgel , 60 Okl......
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...came into a party's possession, but only that the property was taken or appropriated without the owner's consent. Fed. Nat'l Bank of Shawnee v. Lindsey, 1935 OK 455, ¶ 12, 172 Okla. 30, 43 P.2d 1036, 1037 ; Steenbergen, 1987 OK 122, ¶ 9, 753 P.2d at 1332. Conversion of personal property doe......