Koerner v. Wilson

• Decision Date: 14 January 1929
• Docket Number: 12252.
• Parties: KOERNER et al. v. WILSON.
• Court: Colorado Supreme Court

274 P. 737

85 Colo. 140

KOERNER et al. v. WILSON.

No. 12252.

Supreme Court of Colorado

January 14, 1929

Rehearing Denied Feb. 4, 1929.

Department 1.

Error to District Court, Fremont County; James L. Cooper, Judge.

Action by Elwood A. Wilson against Henry Keorner and another. Judgment for plaintiff, and defendants bring error.

Affirmed.

V. N Stinson, of Pueblo, for plaintiffs in error.

T. Lee Witcher, of Canon City, for defendant in error.

ALTER J.

This is an action in trover to recover damages for the conversion of certain personal property. The defendant in error will hereafter be referred to as plaintiff, and the plaintiffs in error as defendants. The defendant Koerner was the sheriff of Fremont county and, at the request of defendant Chilino, levied upon and sold certain apples and apple boxes as the property of one B. A. Wilson, the father of Elwood A. Wilson, the plaintiff herein. Upon trial a verdict for $615.97 was rendered in favor of the plaintiff and against the defendants. Thereafter motion for a new trial was denied and judgment entered upon the verdict, to review which this writ is prosecuted, with the request that it be and operate as a supersedeas.

The complaint, stripped of surplusage, alleges: (1) Ownership and right of immediate possession in plaintiff; (2) unlawful seizure and sale by defendant Koerner at the request of defendant Chilino; (3) demand by plaintiff for return of property; (4) damages in the sum of $2,297.50.

The answer of defendant Koerner: (1) Denies plaintiff's ownership and right of immediate possession; (2) denies seizure and sale of plaintiff's property, but alleges he levied upon certain property in the possession of one B. A Wilson, who was conducting himself as the owner thereof; (3) admits, by failure to deny, the demand of plaintiff for return of property; and (4) denies that plaintiff has been damaged in the sum of $2,297.50.

The answer of defendant Chilino: (1) Denies plaintiff's ownership and right of immediate possession; (2) denies unlawful seizure and sale by Koerner; (3) admits that Koerner seized and sold property at his request; and (4) denies plaintiff's damage in the sum of $2,297.50.

The facts out of which this litigation grew may be summarized as follows: B. A. Wilson, the father of this plaintiff, became involved in financial difficulties, and among his creditors was Chilino, one of the defendants herein. Some time in December, 1925, one Goodrich leased certain premises in Fremont county, Colo., to B. A. Wilson for a term of five years from March 1, 1926, and in said lease was an option to B. A. Wilson to purchase. In the early part of 1926, B. A. Wilson having failed to discharge his indebtedness to Chilino, an action was brought, and Chilino recovered judgment against B. A. Wilson and thereafter caused execution to be issued and be placed in the hands of defendant Koerner, who was sheriff of Fremont county, Colo B. A. Wilson was seriously injured, because of which he claimed he could not longer carry out the terms of his lease with Goodrich, and ultimately he assigned his lease to the plaintiff herein, and thereafter a new lease was executed between the plaintiff and Goodrich, which, for the purposes of this case, was, except it contained no option to purchase substantially the same as the lease between Goodrich and B. A. Wilson. The plaintiff had employment in Olney Springs, Colo., and could devote only part of his time to farming operations, so, it is claimed, he entered into an agreement with his father, B. A. Wilson, that permitted B. A. Wilson to remain upon the leased premises and do such work as his crippled condition permitted and to exercise general supervision over the work, and in exchange therefor the plaintiff agreed to furnish sufficient money from the sale of produce and otherwise to enable B. A. Wilson to support himself and family. While B. A. Wilson was in possession of the premises under this agreement with plaintiff, as it is claimed, the defendant Koerner, at the request, insistence, and demand of defendant Chilino, came upon the premises, demanded of B. A. Wilson payment of the amount due in the Chilino execution, and, upon B. A. Wilson's failure to pay, levied upon the apple boxes and the apples in the orchard, some of which were on the trees and some of which were upon the ground. The apple boxes and apples were removed from the premises and thereafter sold, after being advertised as provided by law for the sale of personalty seized upon execution.

The principal errors upon which the defendants rely for a reversal may be classified: (1) Failure and refusal of court to admit certain exhibits and certain evidence and to give certain instructions pertaining to fraud; (2) failure and refusal of court to direct a verdict for defendants because, it is contended, apples on the tree are realty and cannot be the basis of an action in trover and, as the proof failed to show the value of the apples on the ground separate from the value of the apples on the trees, there could be no recovery herein.

1. There was evidence offered by defendants and received at the trial, without objection by plaintiff, tending to show fraud between plaintiff and B. A. Wilson, his father, who was the judgment debtor in the Chilino case, with respect to the property involved herein, notwithstanding the fact that fraud is...