First National Bank v. Sorenson

• Decision Date: 14 August 1923
• Docket Number: 1068
• Parties: FIRST NATIONAL BANK v. SORENSON
• Court: Wyoming Supreme Court

217 P. 948

30 Wyo. 136

FIRST NATIONAL BANK v. SORENSON

No. 1068

Supreme Court of Wyoming

August 14, 1923

APPEAL from District Court, Weston County; H. P. ILSLEY, Judge.

Action by the First National Bank of Newcastle against Carl Sorenson, doing business as the Niobrara Motor Company. There was a judgment for the plaintiff and defendant appeals.

Affirmed.

M. B Camplin for appellant.

The court erred in denying defendant's motion to strike the amended petition which was filed before answer and without notice; C. S. 5704; a motion to dissolve the attachment was pending; after filing the amended petition, the new attachment was issued. The motion should have been sustained (60 O. S. ___; 49 Bull. Supp. 51) the amended petition changed plaintiff's claim from a bailment tort to a claim based on contract; the attachment could not have been sustained under the original petition, (I Kinkead Cd. Pl 127). Tort cannot be changed to contract; (Cox v. R. R. Co. 87 Ga. 747; Carmichael v. Argard, 52 Wis. 607.) Or contract to Tort. Link v. Jarvis, 33 P. 206, subsequent causes of action cannot be brought in. (Randall v. Christianson, (Ia.) 51 N.W. 253.) The petition cannot be amended to set up a new cause of action after service. (Smead v. Chrisfield Cinti. 1. Handy S.Ct. 573.) The cause of action in the amended petition is different. (Hall v. R. R. Co. 51 N.W. 150); the amended petition relates back to a time when the debt is not due and no application was made or order given for attachment before debt due at the time of issuance. (Kinkead Cd. Pl. 131.) An amendment requires something to amend; neither the original or amended petition state a cause of action; neither allege title or right of possession, demand or damages; a bill of sale, does not confer title, being merely evidence of transfer of possession. The amended petition shows defendant rightfully in possession, the action cannot be maintained when a debt shown not to be due; (12 O. D. 684; 1 Kinkead Cd. Pl. 464; 1 Whittaker's Cd. F. 184, 21 Ency. Pl. & Pr. 1087; Boone Cd. Pl. 136; Bishop Non-Cont. Law, Sec. 396; Smith v. Force, 31 Minn. 119, 16 N.W. 704; Binn v. Baker, 32 P. 1008; Harrington v. Stromberg, 74 P. 413; Clark v. Draper, 19 N.H. 419; Cooley, Torts 442.)

The court erred in discharging the attachment on the ground, that it was levied on the property of defendant's wife. (12 O. S. 189; Stanley v. Foote, 9 Wyo. 335,) and in denying her motion, made for said purpose. (Wichita Co. v. Record, 19 P. 346; Kendall Co. v. August, 32 P. 635, Dolan v. Topping, 32 P. 1120.) The rights of all parties should be determined in a single action. (Fisher v. Hopkins, 4 Wyo. 379.) The court erred in excluding evidence as to the ownership of the car; a general denial puts in issue, both the conversion and plaintiff's title or right of possession. (2 Whit. Cd. Forms 939, 1 Cyc. Pl. & Pr. 821.) The return on attachment was illegal. (18 Kans. 114, 21 Kans. 475, 3 Neb. 218, Hyde v. Kent, 47 Neb. 28, Winter v. Hughes, 24 P. 760.) It is in the writ required by law. (Blythe v. Swensen, 7 Wyo. 303.) The court erred in ordering the sale of the attached property about one month after final judgment, there being no order of sale embodied in the judgment. The court erred in rendering judgment for plaintiff.

Raymond and LaFleiche for respondent.

The notice of filing an amended petition required by 5704 C. S. is to enable defendant to know when to answer; the order overruling defendant's motion to strike the amended petition gave defendant an additional five weeks in which to answer; he was not prejudiced and the purpose of the statute was accomplished; (Moorman v. Schmidt, 69 O. S. 328 is not in point on the facts; demand is unnecessary before commencing an action for conversion where such demand would be useless; the assignment of error in denying the motion of defendant's wife for dissolution of the attachment is without merit, she not being a party to the cause; the action was brought against Carl Sorenson, her husband, doing business as Niobrara Motor Company, from whom plaintiff received a bill of sale of the automobile; appellant could not escape the consequence of his own act in converting the automobile by showing that he had no authority to sell it to plaintiff; jurisdiction was acquired by service of summons therein by attachment; the first attachment was dissolved, but the second attachment continued throughout the action; the order directing the sale of the attached property was made subsequent to judgment, and is not involved in this appeal, the notice of appeal being from the judgment; the attachment if ancillary to the main action, and merely holds the property until final judgment, the trial court is not required to make special findings of fact and conclusions of law, unless expressly requested; the findings and judgment of the trial court based upon conflicting evidence will not be disturbed on appeal.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This action was brought by the First National Bank of Newcastle, as plaintiff, respondent here, against Carl Sorenson, doing business as Niobrara Motor Company, defendant, appellant here. The action was commenced on October 25th, 1920. The petition, after alleging the corporate capacity of plaintiff proceeds in substance as follows: That on June 20, 1920, plaintiff acquired by a bill of sale from the defendant the following chattel, to-wit: One 1920 model, six cylinder, four passenger Jones touring car, color red, with yellow wheels; that the plaintiff thereupon delivered the said motor car to the possession of the defendant to be held for the use and benefit of the plaintiff. That some time thereafter the defendant wrongfully, unlawfully and feloniously converted said motor car to his own use and bargained and sold the same to persons unknown to the plaintiff; the reasonable value of said car is $ 1600.00, which is due from defendant to plaintiff, and for which plaintiff asks judgment. A summons was issued and duly served on defendant the following day. A writ of attachment also was issued, which was subsequently quashed. On November 16th, 1920, and before answer day, plaintiff filed its amended petition in said cause, and after alleging the corporate capacity of the plaintiff proceeds at follows: That on June 20th, 1920, the plaintiff acquired by a bill of sale from the defendant the following chattel to-wit: (here describing the Jones car as described in the original petition); that thereupon the plaintiff delivered said motor car to the possession of defendant to be held for the use and benefit of the plaintiff. That some time thereafter, the defendant wrongfully, unlawfully and feloniously converted said motor car to his own use, and bargained and sold the same to persons unknown to plaintiff; that defendant, in making said sale, assumed to sell said automobile as his own and in derogation of plaintiff's interest therein and of plaintiff's rights, and made said sale with intent to hinder, delay and defraud the plaintiff. That said bill of sale was intended to secure to plaintiff the payment of all indebtedness then or thereafter existing or accruing from defendant to plaintiff, and particularly to secure a promissory note (set out in haec verba) dated October 4th, 1920, given by defendant to plaintiff for $ 1400.00 due in thirty days after date, on which some payments have been made, but leaving a balance due thereon of $ 1046.15; that the reasonable value of said car is $ 1600.00; that there is due plaintiff by reason of said conversion of said automobile the indebtedness aforesaid for which plaintiff asks judgment. A new writ of attachment was issued on the date of the filing of the amended petition which was duly served and levied upon certain property of the defendant. Judgment was entered herein for the plaintiff on June 22nd, 1922, from which the defendant appeals. Other facts are hereafter stated in connection with certain assignments of error of the appellant.

1. The amended petition was filed before answer day, and was doubtless intended to be filed pursuant to Section 5704, W C. S. 1920, which provides that the plaintiff may amend his petition, without leave, at any time before the answer is filed, but that notice of such amendment shall be served upon the defendant, or his attorney. No notice of the filing aforesaid was given, and the defendant made a motion to strike said amended petition from the files for that reason. The motion was overruled and the defendant was given the usual time to plead. This action of the court is assigned as error. The original petition could not be regarded as having been amended under the section of the statute mentioned until notice was served as therein provided. Moorman v. Schmidt, 69 Ohio St. 328, 69 N.E. 617; Bedell v. Baltimore & O. Ry., 63 Ohio Law Bulletin 4, 16 Ohio L. Rep. 125. When, therefore, no notice was given, as required, the amended petition was, perhaps, strictly speaking subject to be stricken. But the motion to strike was heard on March 10, 1921. The court at that time had ample authority to permit an amended petition to be filed under its general authority to permit amendments. When it accordingly refused to strike the amended petition from the files, it was tantamount to permission to file it as of that time. Bamforth v. Ihmsen, Admr., 28 Wyo. 282, 298, et seq., 204 P. 345; 205 P. 1004 and cases there cited. Inasmuch as defendant was given ample time to file his answer, no prejudice could have resulted from the action of the court. The fact that an attachment was pending could not change the authority of the court to permit, in its discretion, an amendment to be made in the proper case. In fact we have held that an amendment...