Jones v. Parker

• Decision Date: 17 January 1929
• Docket Number: 1492
• Parties: JONES v. PARKER [*]
• Court: Wyoming Supreme Court

273 P. 687

39 Wyo. 423

JONES v. PARKER ^[*]

No. 1492

Supreme Court of Wyoming

January 17, 1929

ERROR to District Court, Fremont County; EDGAR H. FOURT, Judge.

Action by Edith A. Jones against R. N. Parker, who filed a counter-claim. Judgment for defendant and plaintiff brings error.

Judgment affirmed.

G. H Paul, for plaintiff in error.

This being an action in replevin, evidence under defendant's counter-claim was irrelevant, Schlessigner v. Cook, 9 Wyo. 265. No legal or equitable defense to the enforcement of the security was submitted, and it was stated that the mortgage indebtedness was unpaid. The alleged tender was insufficient. 5740 C. S. It was not kept good, 38 Cyc. 158 159. Plaintiff was prevented by the trial court, from showing the amount owing by defendant on the mortgage indebtedness. The jury awarded defendant damages in the sum of $ 937.00 but is silent as to the right of property, or of possession, which is required by Section 6287 C. S. The finding of damages, without finding as to right of possession at the commencement of the action invalidates the verdict. 34 Cyc. 1528. Ulrich v. McConaughey, 63 Nebr. 10, Search v. Miller, 9 Nebr. 26; Wolf v. Meyer, 12 Oh. St. 432. The general rule is that the jury is required to find whether defendant had the right of property, or right of possession only, and in either case, the value of the property, or of such possession, State v. Dunn, 60 Mo. 64; Ford v. Ford, 3 Wis. 399. Plaintiff was entitled to possession at the beginning of the suit. Defendant admitted that there was $ 40.00 due on the note. The judgment should be reversed.

M. C. Burk, for defendant in error.

The petition in this case, if it states any cause of action, calls for the recovery of money and a foreclosure of a chattel mortgage. Upon that theory, defendant filed his answer and cross-petition, with prayer for judgment of all but $ 40.00 and a tender of unpaid balance. The reply alleges a foreclosure and a claim of $ 67.01 due. The action must be considered as brought under Section 5608 C. S. Even conceding it to be an action of replevin, which we do not, defendant had a right to allege a wrongful taking of the property, its value and allegations of damages sustained; Section 6286 C. S. The general verdict was not void, 34 Cyc. 1525, 1527, 22 St. Ency. of Proc. 937. A tender of amount due on a chattel mortgage extinguishes a lien, 11 C. J. 679, even if made after default, Mitchell v. Roberts, 17 F. 776; Thomas v. Seattle Brewing Co., 94 P. 116. The authorities cited by plaintiff are therefore not in point. The right to a counter-claim or set-off was available.

G. H. Paul, in reply.

The action was one in replevin. The verdict does not respond to the issues, since it did not comply with the statute. The action is governed by the provisions of Chapter 6275 to 6292 both inclusive. The verdict contains no finding for defendant except an item of damages.

A. C. Allen and O. N. Gibson, supplemental brief for plaintiff in error.

It is apparent that the action was not brought under Section 5608 C. S. for foreclosure and money judgment; it was an action for the recovery of specific personal property under Chapter 383 C. S. The petition meets every statutory requirement, except that the prayer was defective in not praying for possession. The verdict does not respond to the issues as required by Section 6287 C. S., and was therefore fatally defective, Wolf v. Meyer, 12 Ohio St. 432; Smith v. Pilgrim, (Calif.) (No. 4 Advance Sheets) 269 P. 765. A tender must be kept good, 38 Cyc. 173; Sanford v. Loan Soc., et al., 80 F. 64; Kortright v. Cady, 21 N.Y. 343; Murphy v. Bridge, et al., 229 P. 710; Bank v. Elam, 258 P. 892. A cross-petition for conversion as was filed in this case, is not permissible, Schlessinger v. Cook, 9 Wyo. 256. Plaintiff proceeded in compliance with the statute, McDaniel v. Hoblitt, (Wyo.) 245 P. 297. The answer embraces an account for work and labor, something not connected with the subject of the action, 23 R. C. L. 923. The judgment is not supported by the record or the verdict.

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

OPINION

KIMBALL, Justice.

This is a proceeding in error for review of a judgment entered on the verdict of a jury. The bill of exceptions was not prepared and presented in time and for that reason was struck from the record. 264 P. 97. Upon the filing of an amended petition in error, the case was retained for the purpose of considering assignments of error that may be disposed of upon the record proper. 266 P. 128. Under the amended petition in error, the contentions in substance are, that the pleadings do not support the verdict, and that the verdict does not comply with the law and is insufficient to warrant the judgment.

The plaintiff in error was the plaintiff in the Trial Court. The contents of the record so far as material, will be summarized briefly.

The action was commenced in the District Court. The petition alleges that, by virtue of a chattel mortgage dated February 4, 1925, from defendant to plaintiff, the plaintiff has a special ownership in 31 head of sheep with their increase, and four head of cows and heifers. The chattel mortgage was given to secure the payment of a promissory note of the same date for $ 203, due June 15, 1925, with 10% interest. The note, set forth in the petition, shows a payment of $ 57.50 on September 5, 1925. The petition alleges that the property was not taken in execution on an order or judgment, etc. (following the language of paragraph 4, Sec. 6570, C. S. 1920, relating to replevin in Justice of the Peace Courts), and that it was wilfully detained by defendant after a demand therefor before suit; that the note has not been paid in full, and that the mortgage authorizes the plaintiff to take possession of the property and sell so much thereof as may be necessary to pay the balance due on the debt; that defendant refuses to pay the balance of the debt, or to deliver the property to the plaintiff. It is further alleged that plaintiff has been damaged in the sum of $ 75 by the refusal to deliver the property, and $ 20 attorney's fees. The prayer is for judgment for $ 161.99, the amount due on the promissory note, $ 75 for unlawful detention of the property, $ 20 attorney's fees; that "the said chattel mortgage be foreclosed upon and the property sold," and "out of the proceeds received therefrom to pay the costs in said cause and the balance remaining to be applied upon the judgment of the plaintiff, and for any other and further relief that may seem reasonable and just in the premises."

The summons, following the praecipe therefor, describes the action as one "for the recovery of money--amount claimed $ 256.99 and interest and for foreclosure and for specific personal property."

The answer denies the allegations of the petition except those specifically admitted. It alleges that the debt has been paid, except $ 40, and that that amount was tendered and refused November 7, 1925. Then, "by way of cross-petition," it is alleged that defendant performed work and labor for plaintiff for which there is due defendant from plaintiff $ 69.40. Then, again "by way of cross-petition," it is alleged that on March 1, 1926 (the date of the commencement of the action), the plaintiff caused to be issued an order of delivery under which the sheriff took from defendant 31 head of old sheep of the value of $ 465, 20 lambs of the value of $ 200, and three heifers and three calves of the value of $ 260. It is alleged that by the taking of said property under said order of delivery the defendant has been damaged in the sum of $ 925, the value of the property, and that he also suffered special damages in the sum of $ 50, by the loss of pasture and feed for said sheep, and $ 500 as further "special damages" for "great injury" suffered by "plaintiff (defendant) and his family" by reason of the "unlawful and malicious taking of said property." The prayer of the answer was for judgment for the damages stated, and also $ 1000 as punitive damages.

The reply is a document of seven typed pages. It admits the taking of the property, with some slight difference in the number of animals taken, under an order of delivery procured on the institution of the action, and alleges that the mortgage was foreclosed by advertisement and sale in accordance with the mortgage. It alleges that the debt at the time of sale amounted to $ 166.28, and that the expenses of foreclosure were $ 257.48, a total of $ 423.76, and that the property sold for $ 365.75, leaving due plaintiff the sum of $ 67.01. The expenses of sale charged against the mortgagor were itemized in the reply, and included $ 20 attorney's fee for foreclosing the mortgage; $ 24, "costs in Justice Court;" and $ 93.50, "costs in District Court." In explanation of the charge of "costs in Justice Court," it is alleged that the plaintiff previously had brought in the Justice Court a replevin action against the defendant for the same property; that the constable left the property in the possession of defendant on faith of defendant's agreement to hold it subject to the further orders of the constable; that the defendant later announced that he would not deliver the property to the constable, and thereafter the replevin action in the Justice Court was dismissed without prejudice, and the present action commenced in the District Court. It is explained in the reply that the costs in the action in the Justice Court were charged against the defendant as a part of the expenses of foreclosure because defendant had not kept his promise to deliver the property to the constable. The item, "costs in District Court," was evidently intended to cover the costs in the present action, so far as then...