Ketch v. Smith

• Citation: 146 A. 247
• Parties: KETCH v. SMITH.
• Decision Date: 24 May 1929
• Court: Supreme Judicial Court of Maine (US)

146 A. 247

KETCH

v. SMITH.

Supreme Judicial Court of Maine.

May 24, 1929.

Exceptions from Supreme Judicial Court, Aroostook County, at Law.

Action by Israel Ketch against B. S. Smith. Judgment for defendant, and plaintiff brings exceptions. Exceptions overruled.

Argued before WILSON, C. J., and DUNN, STURGIS, BARNES, PATTANGALL, and FARRINGTON, JJ.

W. P. Hamilton, of Caribou, for plaintiff.

C. M. Fowler and H. T. Powers, both of Ft. Fairfield, for defendant.

FARRINGTON, J. On exceptions. This was an action of replevin heard before the presiding justice below without jury. The defendant pleaded the general issue and for brief statement said that the automobile described in plaintiff's writ was, at the time of the taking, in the possession of defendant as a duly qualified deputy sheriff by virtue of a seizure on an execution.

The only facts available from the bill of exceptions on which the ruling of the court below must have been based are those contained in the written decision of the court in a previous case between the same parties in which the same issues were involved, which decision, it is assumed, was intended to be a part of the bill. Those facts are as follows:

Fred E. Peterson on November 4, 1926, sold to S. B. Schriver and Thelma Schriver an automobile, taking a Holmes note for security. The note was recorded November 5, 1926. On January 25, 1927, it was assigned by Peterson to the plaintiff, and on the same date the assignment was recorded, and the plaintiff, having taken possession of the automobile, gave to the Schrivers a written notice of his intention to foreclose the note, and on the following day recorded a copy of the notice.

On March 24, 1927, the L. B. Bean Company brought an action against S. B. Schriver on a note of his held by the company, and on March 25, 1927, the defendant attached the automobile on the premises of the plaintiff and in his absence. The defendant had taken possession of the automobile and had it in the highway when the plaintiff returned, and then the defendant informed the plaintiff that the company had given him money to pay the amount due on the note and that he was prepared to and desired to pay such amount and took out of his pocket the money given him for that purpose. The plaintiff refused to talk with him and the defendant left with the automobile. The 60 days after recording notice of the foreclosure had not, on March 25, 1927, expired.

The plaintiff on March 29, 1927, on which date the 60 days' notice had expired, brought an action of replevin. The defendant pleaded non cepit with brief statement that the automobile was, on March 29, 1927, in his possession and held by him as an officer by virtue of an attachment made by him on March 25, 1927, as above stated.

Upon the above facts the presiding justice in the former case held that the defendant had the right to attach the automobile on March 25, 1927, and that the conduct of defendant at the time of attachment amounted to a tender which was waived by the plaintiff; that the right to redeem from the foreclosure was not forfeited; and that the plaintiff, not having given the required statutory notice as claimant, could not bring the action. Judgment was accordingly rendered for the defendant and $1 damages and costs and return of the property ordered. No appeal was taken and it is to be assumed that the...