J. I. Case Threshing Mach. Co. v. Rice
| Decision Date | 07 January 1913 |
| Citation | 139 N.W. 445,152 Wis. 8 |
| Parties | J. I. CASE THRESHING MACH. CO. v. RICE ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Trempealeau County; E. C. Higbee, Judge.
Action by the J. I. Case Threshing Machine Company against G. S. Rice, in which P. H. Johnson, defendant's trustee in bankruptcy, intervened. Judgment for plaintiff, and the trustee appeals. Affirmed.
Action to recover personal property. The pleadings presented the question of whether the title to such property was in plaintiff or in the defendant Rice or his trustee in bankruptcy. The case was submitted on the following, among other facts:
Rice gave plaintiff a chattel mortgage on the property to secure payment of his indebtedness, evidenced by a promissory note mentioned therein. The mortgage was duly filed. It contained all the usual provisions. After maturity of the note plaintiff duly recovered judgment thereon against Rice. Such judgment, at plaintiff's request, was enforced by issuance of an execution, levy thereunder upon the mortgaged property in the possession of Rice, and advertisement for sale of his interest therein. Before the day for the sale the levy was duly released. Demand was then made on behalf of plaintiff for possession of the property under the chattel mortgage and was refused. This action was commenced to recover the same, plaintiff relying upon its mortgage. During the occurrences mentioned,--and some ten months after the mortgage was given,--Rice was duly adjudged a bankrupt. The trustee in the bankruptcy proceedings became an intervener in this action and claimed to succeed to all rights of Rice to the property. The mortgage indebtedness was unpaid when the action was commenced and remained so down to the time of the trial.
On such facts the court held that plaintiff was entitled to recover. Judgment was rendered accordingly.John F. Kulig, of Independence, and R. S. Cowie, of Whitehall, for appellant.
Ekern & Eggum, of Whitehall, for respondent.
MARSHALL, J. (after stating the facts as above).
The sole question for decision is this: In case the holder of a chattel mortgage recovers a judgment for the mortgage indebtedness and enforces it by an execution, levy and an advertisement for sale of all the mortgagor's interest in such property, is that an election of remedies releasing the mortgage title?
[1] There are many authorities supporting the affirmative of the proposition. Evans v. Warren, 122 Mass. 303, and Dyckman v. Sevatson, 39 Minn. 132, 39 N. W. 73, are good types thereof. There are also many authorities supporting the negative. The following are good types thereof: Byram v. Stout, 127 Ind. 195, 26...
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Huether v. Baird
... ... Rowell v. Smith (Wis.) 102 N.W. 1; J.I. Case ... Threshing Mach. Co. v. Rice, 139 N.W. 445 ... C ... ...
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Roseliep v. Herro
...held that a chattel mortgage may be foreclosed after entry of judgment on an indebtedness secured thereby, J. I. Case Threshing Machine Co. v. Johnson, 152 Wis. 8, 139 N. W. 445; Ex parte Logan, 185 Ala. 525, 64 So. 570, 51 L. R. A. (N. S.) 1069;Graham v. Perry, 200 Wis. 211, 228 N. W. 135,......
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First Nat. Bank of Osakis v. Flynn
...v. Kohn, 157 Ill. 579, 41 N. E. 902, 29 L. R. A. 803; Howard v. Parks, 1 Tex. Civ. App. 603, 21 S. W. 269; J. I. Case Threshing Mach. Co. v. Rice, 152 Wis. 8, 139 N. W. 445. In Dyckman v. Sevatson, 39 Minn. 132, 39 N. W. 73, the general proposition is laid down, and it is correct, that "one......
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