First Nat. Bank v. Miller
| Decision Date | 15 November 1911 |
| Parties | FIRST NATIONAL BANK OF WHEATON, MINN., Plaintiff and appellant, v. RUDOLPH MILLER et al., Defendants and respondents. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Roberts County, SD
Modified and affirmed
C. E. Houston, Howard Babcock
Attorneys for appellant.
J. J. Batterton, F. I. Murphy
Attorneys for respondents.
Opinion filed November 15, 1911
This is an action in claim and delivery, and, the judgment being in favor of the defendants, the plaintiff has appealed. The complaint is in the usual form to recover the possession of a threshing rig, engine, etc., and the property is alleged in the complaint to be of the value of $1,000. In his answer the defendant Rudolph Miller denied all the allegations of the complaint, except the incorporation of the plaintiff, and alleged that the defendant Alda M. Miller was the owner and in possession of the said property, and that the only connection that he had with the said property was as the agent of said Alda M. Miller, and the said defendant prayed that the complaint be dismissed as to him, and for his costs. The defendant Alda M. Miller answered, alleging that she was the owner of said property described in the complaint, and denied all the other allegations of the complaint, except the incorporation of the plaintiff, and prays that she may be adjudged to be the owner and entitled to immediate possession of the property, or, in case delivery could not be had, the sum of $1,000, the value thereof, together with the costs and disbursements of this action.
The plaintiff in its complaint claimed a right to the possession of the property by virtue of five chattel mortgages described in the complaint. And at the commencement of the trial it was stipulated that three of the chattel mortgages had been paid since the commencement of the action, and the plaintiff offered no proof in regard to the chattel mortgages to itself, but claimed title to the property under a chattel mortgage alleged to have been made to the Hennepin Lumber Company, and assigned by said company to the plaintiff.
After the jury was impaneled, and prior to the introduction of any evidence, the defendants' attorney made the following admission, which was entered upon the record. "We admit at this time that the property described in the complaint is worth, or was worth at the time of the commencement of the action, $1,000." Plaintiff objected to this admission as incompetent and immaterial, and not proper to be made at this stage of the case; and for the further reason that the pleadings as they stand deny that fact, and that it would be an amendment, and that if the admission is permitted the plaintiff should be allowed to amend the allegations of value contained in the complaint. The plaintiff's request was objected to, and no ruling seems to have been made by the court upon either the defendants' admission or the plaintiff's request that it be allowed to amend the complaint. It is contended by the appellant as no order was made by the court, allowing the defendants to amend their answers, the pleading remained unamended, and that therefore the question of the value of the property described in the complaint and taken by the sheriff was in issue; but we are unable to agree with the appellant in this contention. As it was alleged in the complaint that the property was of the value of $1,000, and although the defendants had denied this allegation in their answer, it was proper for the defendants to admit as a fact in the case the value as stated to be correct, and we are of the opinion that after the admission there was no longer any issue before the court as to the value of the property. But, in any event, as no ruling was made by the court as to the defendants' admission and the plaintiff's application for leave to amend its complaint, and no exception was taken to the ruling on either question, there is nothing before us to review.
It appears by the return of the sheriff that he failed to find the water tank and some other minor parts of the machinery described in the complaint, and the appellant sought to prove on trial the value of the property taken by the sheriff. Objection was made by the defendants to this evidence, on the ground that, having alleged the value in the complaint, and that value having been admitted by the defendants in open court, such evidence was inadmissible. The court sustained the objection, and we are of the opinion that in so ruling it was correct, and that the only proof admissible on the part of the plaintiff was as to the value of the water tank and other minor parts of the machinery not found by the sheriff. No evidence seems to have been offered by either party as to the value of the water tank and other minor parts, but the jury evidently by their verdict deducted $44 as the value of the tank and other missing parts, as by their verdict they found the value of the property to be $956.
In Park v. Robinson, 15 S.D. 551, 91 N.W. 344, and First Nat. Bank v. Calkins, 16 S.D. 445, 93 N.W. 646, this court held that; where the plaintiff in claim and delivery alleges the value of the property sought to be recovered, it is estopped from proving that the property was of a different value from that alleged in the complaint....
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