Hoebel v. Utah-Idaho Live Stock Loan Co.

• Decision Date: 29 May 1924
• Citation: 39 Idaho 294,227 P. 1048
• Parties: OTTO P. HOEBEL, Administrator of the Estate of JAMES H. MUDD, Deceased, Respondent, v. UTAH-IDAHO LIVESTOCK LOAN COMPANY, a Corporation, and THE AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellants
• Court: Idaho Supreme Court

227 P. 1048

39 Idaho 294

OTTO P. HOEBEL, Administrator of the Estate of JAMES H. MUDD, Deceased, Respondent, v. UTAH-IDAHO LIVESTOCK LOAN COMPANY, a Corporation, and THE AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellants

Supreme Court of Idaho

May 29, 1924

Rehearing Denied July 31, 1924.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.

Action on undertaking in claim and delivery. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent. Petition for rehearing denied.

Richards & Haga, George F. Gagon and Frank T. Wyman, for Appellants.

A surety on a replevin bond does not undertake to be responsible for the return of the property unless a return thereof be adjudged by the court in the replevin action, and that must be determined from an inspection of the judgment in that action. (Vallandingham v. Ray, 128 Ky. 506 108 S.W. 896; Howard v. Wyatt, 145 Ky. 424, 140 S.W 655; Thomas v. Irwin, 90 Ind. 557; Ashley v Peterson, 25 Wis. 621; Gallarati v. Orser, 27 N.Y. 324; Daniels v. Mansbridge, 4 Ind. Ter. 104, 69 S.W. 815.)

The duty to return the property does not follow from the granting of a nonsuit on the motion of defendant, or on the entering of a judgment for costs in favor of defendant. Under C. S., secs. 6759, 6863, 6898, the right of the defendant to the possession and return of the property or to payment therefor and to damages for the detention thereof must be determined by the judgment in the replevin action. (Vinyard v. Barnes, 124 Ill. 346, 16 N.E. 254; Cooper v. Brown, 7 Dana (Ky.), 333; Cowling v. Greenleaf, 32 Kan. 392, 4 P. 855; Scott v. Scott, 50 Mich. 372, 15 N.W. 515; Dillingham v. Smith, 32 Me. 182; White v. Van Houten, 52 Mo. 577; 34 Cyc. 1571, 1576.)

Under C. S., secs. 6863 and 6898, the defendant in a replevin action is entitled to a judgment determining his right to the possession of the property taken by the plaintiff, and if it cannot be returned he is entitled to a judgment for the value thereof, together with whatever damages he may have sustained by being deprived of its possession. Judgment entered in such an action concludes the parties not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined in that action. (Ladd v. Prentice, 14 Conn. 109; Stevens v. Tuite, 104 Mass. 334; Carroll v. Woodlock, 13 Mo.App. 574; Ihrig v. Bussell, 68 Wash. 70, 122 P. 608; Yuen Suey v. Fleshman, 65 Ore. 606, Ann. Cas. 1915A, 1072, 133 P. 803; Cromwell v. Sack Co., 94 U.S. 351, 24 L.Ed. 195; Wilson v. Deen, 121 U.S. 525, 7 S.Ct. 1004, 30 L.Ed. 980; Columb v. Webster Mfg. Co., 84 F. 592, 28 C. C. A. 225.)

As respondent voluntarily moved for a nonsuit and took a judgment for costs without asking for the return of the property or the determination of the value thereof, or the damages which he had sustained, the presumption is that he was not entitled to more than his costs and that he was not the owner of the property and was not entitled to the possession thereof. (Clark v. Norton, 6 Minn. 412, 6 Gil. 277; Daniels v. Mansbridge, supra.)

A complaint against a corporation that fails to allege that the defendant is a corporation is fatally defective. Without this averment the complaint does not state facts sufficient to constitute a cause of action, and this defect is never waived. (Miller v. Pine Mining Co., 3 Idaho 493, 35 Am. St. 289, 31 P. 803.)

A. S. Dickinson and Oppenheim & Lampert, for Respondent.

"The obligations of the principal and sureties in an undertaking on claim and delivery, which undertakes for the prosecution of the action and for a return of the property, if return thereof be adjudged, are broken by the failure of the plaintiff in the replevin suit to prosecute the said action, and the sureties on the undertaking are liable for such breach of the undertaking, where the property, possession of which was procured by the plaintiff in the replevin suit by virtue of said undertaking and proceedings on claim and delivery was sold and converted by said plaintiff, and the said goods were not returned, after demand, to the defendant in said replevin suit, notwithstanding no judgment for the return of the said goods and chattels was rendered in the replevin suit, and the same was dismissed because of failure to prosecute the same by plaintiff." (Keenan v. Washington Liquor Co., 8 Idaho 383, 69 P. 112.)

Under C. S., sec. 6759, the condition of a replevin bond "for the prosecution of the action" means for the prosecution of the action with effect. (24 Am. & Eng. Ency. of Law, 539; Alderman v. Roesel, 52 S.C. 12, 29 S.E. 385; Berghoff v. Heckwolf, 26 Mo. 511; Elliott v. Black, 45 Mo. 372.)

Even in jurisdictions where it is not considered necessary for the plaintiff in a replevin action to prosecute the action with effect, a distinction is made between a final judgment on the merits and a judgment entered upon a dismissal or nonsuit, the latter being held a violation of the conditions of the replevin bond. (Ginaca v. Atwood, 8 Cal. 446; Mills v. Gleason, 21 Cal. 274; Cox v. Sargent, 10 Colo. App. 1, 50 P. 201; Kentucky L. & I. Co. v. Crabtree, 118 Ky. 395, 4 Ann. Cas. 1133, 80 S.W. 1161.)

A nonsuit is the breach of the condition "to prosecute," however interpreted. (McIlvaine v. Holland, 5 Harr. (Del.), 226; Flannigan v. Erwin, 173 Ill.App. 452; Little v. Bliss, 55 Kan. 94, 39 P. 1025; 23 R. C. L. 900, sec. 60.)

A defendant is estopped from complaining that its identity is not established because the complaint fails to allege its corporate capacity. (Fegtly v. Village Blacksmith Co., 18 Idaho 536, 35 Am. St. 289, note, 111 P. 129; Martin v. Kentucky Lands Inv. Co., 146 Ky. 525, Ann. Cas. 1913C, 332, note, 142 S.W. 1038; Stanley v. Richmond etc. R. R. Co., 89 N.C. 331.)

A principal is not required to sign an undertaking where he is made liable thereon by operation of law. (C. S., sec. 7236; 32 Cyc. 23, 42; Pima County v. Snyder, 5 Ariz. 45, 44 P. 297; Eureka Sandstone Co. v. Long, 11 Wash. 161, 39 P. 446.)

WILLIAM A. LEE, J. McCarthy, C. J., and Budge, J., concur.

OPINION

WILLIAM A. LEE, J.

--This action was commenced in the sixth judicial district for Bingham county, to recover on the undertaking, the value of certain cattle taken from respondent's intestate under a writ of claim and delivery in an action brought in the United States district court for the district of Idaho, wherein the Utah-Idaho Livestock Loan Co. was plaintiff and J. H. Mudd, respondent's intestate, was defendant.

The action in the federal court was commenced November 21, 1920, to recover possession of this property. The American Surety Company of New York, one of the appellants herein, became surety on the undertaking required by C. S., sec. 6759. Upon execution of this undertaking the United States marshal took these cattle from the defendant Mudd and delivered them to the Utah-Idaho Livestock Loan Co. At the close of its testimony at the trial of that case the court sustained the motion for a nonsuit by defendant Mudd and entered judgment for $ 167 costs. It does not appear that any further relief was demanded by Mudd in that action. After the entry of judgment therein the defendant Mudd made written demands upon both appellants herein for the return of the property, which demands were refused by appellants and thereupon he commenced this action in the state court. Appellant separately demurred to the complaint.

Before trial of this cause Mudd died and his administrator, respondent herein, was substituted and the cause proceeded to trial without a jury. The court found that Mudd was entitled to possession of the cattle at the time of the nonsuit in the claim and delivery action in the federal court; that the undertaking herein sued on had been executed therein as required by law and was substantially as required by C. S., sec. 6759; that the cattle were taken by the United States marshal and delivered to said Utah-Idaho Livestock Loan Co.; that it had been nonsuited in that court and had failed to further prosecute its said action. Upon these findings the court entered conclusions of law; that payment and satisfaction of judgment for costs in the former action is not a bar to this action and that respondent is entitled to a judgment for $ 12,720 against the Utah-Idaho Livestock Loan Co. and the American Surety Co., who had executed the undertaking on its behalf as plaintiff in the claim and delivery action, and entered judgment in favor of respondent from which judgment appellants take separate appeals.

Appellant severally filed a general demurrer to the complaint. The Utah-Idaho Livestock Loan Co. contends that this action being upon a contract, the undertaking, and it not having signed the same it cannot be liable thereon. The undertaking was given on behalf of this appellant and even though it did not sign it we think it is, nevertheless, liable thereon under C. S., sec. 7236. (See, also, State v. McDonald, 4 Idaho 468, 95 Am. St. 137, 40 P. 312.) Its demurrer in so far as it relates to that ground was properly overruled.

The American Surety Co. urges in support of its general demurrer that the complaint fails to allege that it is a corporation and relies upon Miller v. Pine Mining Co., 3 Idaho 493, 35 Am. St. 289, 31 P. 803. In Fegtly v. Village Blacksmith Co., 18 Idaho 536, 111 P. 129, Miller v Pine case is considered and authorities holding to the contrary doctrine are cited on page 540 of the official report (111 P. 130), and the court remarks that while it was not necessary to overrule the Miller case, it clearly indicates that it would have done so for the reasons stated had it been necessary. It should be observed in the...