Lawer Auto Supply Co. v. Teton Auto Co.

• Decision Date: 18 February 1930
• Docket Number: 1599
• Citation: 41 Wyo. 263,284 P. 1001
• Parties: LAWER AUTO SUPPLY CO. v. TETON AUTO CO. [*]
• Court: Wyoming Supreme Court

284 P. 1001

41 Wyo. 263

LAWER AUTO SUPPLY CO. v. TETON AUTO CO. ^[*]

No. 1599

Supreme Court of Wyoming

February 18, 1930

APPEAL from the District Court, Fremont County; EDGAR H. FOURT Judge.

Action by Lawer Auto Supply Co., a corporation, against the Teton Auto Company, to recover possession of an automobile. There was a judgment for plaintiff, upon which execution was issued. From an order denying their motion to quash the execution, defendants named appealed. See also 39 Wyo. 14 269 P. 29, 273 P. 545.

Affirmed.

The action was submitted for the appellant on the brief of M. C Burk, of Riverton, Wyoming.

Plaintiffs' action was to recover possession of an auto truck which had been attached by Gaylor, sheriff upon a writ, issued in an action between defendant Teton Auto Co., as plaintiff, and A. C. Olson as defendant. Defendant gave a re-delivery bond and retained possession. Judgment was rendered in favor of Teton Autotruck Company, that the truck be returned within ten days, and if not returned, plaintiffs were to have judgment against defendants for $ 800.00. Execution issued on this judgment and was quashed.

Subsequently, an order granting another execution was made and a motion to quash it was overruled. The court erred in overruling the second motion, for the reason that the question was res judicata, 6281 C. S.; Boswell v. Bank, 16 Wyo. 161. An alternative judgment will not support an execution for money only, since execution must follow the judgment. 23 R. C. L. 941, 34 Cyc. 1553; Marks v. Mills, 58 P. 526; McIntosh Co. v. Buffinton, 217 P. 635; Lavie v. Crosby, 74 P. 221. The District Court was without authority to reverse its former holding and overrule the second motion to quash. 34 Cyc. 884; Parker v. Obensheim, 39 N.E. 869; 34 C. J. 764; White v. Ladd, 68 P. 739; 34 C. J. 931.

The cause was submitted for respondent on the brief of O. N. Gibson, of Riverton, Wyoming.

In contemplation of law, the judgment here automatically became one for money only, upon the election of the defendants not to avail themselves of the privilege of returning the property within ten days from date of rendition. 34 C. J. 508; State ex rel. Smith, (Wash.) 167 P. 91; Garage Co. v. Motor Co., 100 Iowa 203, 203 N.W. 841; Coulter v. Lumpkin, 34 Ga. 225; 21 S.E. 461; Miller v. Milford, 2 Serg. & R. (Pa.) 35; Eickhoff v. Eikenbary, 52 Neb. 332, 72 N.W. 308; McRae v. K. C. Piano Co., 69 Kan. 457, 77 P. 94; Ewald v. Boyd, 24 S.D. 16, 123 N.W. 65; 24 L. R. A. (N. S.) 739; Schleuning v. West, 34 S.D. 356, 148 N.W. 604. In replevin where the defendant gives bond, and retains possession, the judgment should ordinarily be in the alternative; but a judgment for the value of the property only is not void; it may not even be erroneous. It is not subject to collateral attack on this ground. Bank v. Boswell, 16 Wyo. 161; White Auto Co. v. Hamilton, 31 Wyo. 390; Boley v. Griswold, 10 Wall. 486; 34 Cyc. 1548; 23 R. C. L. 938. Since the judgment would not have been open to collateral attack if it had not been in the alternative, it follows as a matter of course that the power of the court to limit the time within which the property is to be returned cannot be collaterally questioned. Whitaker v. First Nat. Bank, 32 Wyo. 288; State ex rel. v. Dist. Court, 32 Wyo. 281; Parrott v. Dist. Court, 20 Wyo. 494; Emelle v. Spinner, 20 Wyo. 507; Holt v. City of Cheyenne, 22 Wyo. 212; Hennessey v. Railroad, 24 Wyo. 305. A judgment in the alternative, limiting the time within which property may be returned in replevin, is not void on the ground that the court was without jurisdiction to prescribe the limitation. The point could only be raised by appeal. Even on appeal, in the absence of evidence, this court would presume that the facts warranted the limitation. White Auto Co. v. Hamilton, 31 Wyo. 390; Bank v. Boswell, 16 Wyo. 161. A motion to quash an execution, based upon a defect in the judgment is a collateral attack. 23 C. J. 537. While a motion for execution is ordinarily not required, it was proper under the facts disclosed in the present case, and the order was conclusive upon defendant in the absence of appeal. 23 C. J. 367; Jones v. Rhoades, 74 Ind. 510. By refusing to return the property, defendants elected to pay the value thereof and are estopped from questioning the validity of the execution. State v. Smith, (Wash.) 167 P. 91; Eickhoff v. Eikenbary, (Nebr.) 72 N.W. 308; Arthur v. Shellman, (Wash.) 39 P. 670. One without right to the property cannot complain that he was not given an opportunity to return it. Claudius v. Aguierre, (Calif.) 26 P. 1077; Standley v. McDonald, 169 P. 427; Wheeler v. Jones, (Mont.) 40 P. 77. The history of this case affords an apt illustration, of a wilfull distortion of remedies and procedure, wisely designed for the protection of litigants, all resulting in delay and injustice. A return of the property after a lapse of three years, greatly deteriorated in value, would have been an injustice to plaintiff. Appellant's counsel apparently assumes that he has succeeded in obtaining a satisfaction without a performance of the judgment. But his position is unsound. The doctrine of res judicata is not applicable to decisions upon motions to quash executions. 10 R. C. L. 1253; Rockwell v. Court, (Colo.) 29 P. 454; Freeman on Judgments, Sec. 480; 15 R. C. L. 955; 15 Enc. P. & P. 349. Orders are not regarded as res judicata with the same strictness, as judgments. They are subject to modification. Rice v. Van Why, 111 P. 599; Rockwell v. Court, supra. The judgment should be affirmed with penalty and costs.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

On November 29, 1924, the plaintiff brought an action to recover the possession of an auto truck. Judgment was rendered in the case on January 27, 1925, in which the court, Judge Burgess presiding, found that the plaintiff, at the time of the institution of the suit, was the owner of and entitled to the possession of the truck in question; that the defendants, Gaylord and Teton Auto Co. , unlawfully detained the same; and that the value of the truck was the sum of $ 800. The court accordingly proceeded to render judgment in favor of the plaintiff as follows:

"Wherefore, it is considered, adjudged and decreed by the court that plaintiff have judgment for the return of the truck described in the petition, and unless the same is returned to the plaintiff within ten days from the date hereof, that plaintiff have judgment against defendants, Teton Auto Company, and L. B. Gaylord, for the sum of Eight Hundred Dollars."

The truck was not returned within the time fixed by the judgment, and so far as the record shows has never been returned or offered to be returned. Perhaps by reason of this fact an order was entered in the case on August 14, 1926--Judge Cromer presiding in court--which is as follows:

"Now come the parties, plaintiff and defendants in the above entitled cause, and plaintiffs motion for execution coming on regularly to be heard and being submitted to the court, the court finds that the same should be granted. It is therefore ordered that plaintiff have execution against the defendants for the value of the property found in said judgment, together with interest thereon at the rate of seven per cent per annum as provided by law, and that the clerk be directed to issue said execution accordingly, on September 14th, 1926, unless otherwise ordered by the court.

"Done in open court this 14th day of August, 1926."

On August 24, 1927, an execution was issued pursuant to the order of the court last mentioned. Thereupon the defendants filed a motion to quash the execution and on October 8, 1927, the court, Judge Fourt presiding, made and entered the following order:

"Now on this 8th day of October, 1927, the above entitled cause coming on regularly to be heard upon the motion of defendants to quash the execution issued in this said cause on the 24th day of August, 1927, and the plaintiff being now represented by its counsel, O. N. Gibson, and the defendants being now represented by their counsel, M. C. Burk, and the matter now being presented on motion to quash the execution, and it appearing to the court that the judgment made and entered on the 27th day of January, 1925, was and is an alternative judgment; that execution in this cause must conform to said judgment and be in the alternative; that the said execution issued on the 24th day of August, 1927, was and is an execution in form of that upon a money judgment only, and that said execution does not conform to the judgment: It is therefore ordered, that the execution heretofore issued in this said cause on the 24th day of August, 1927, and directed to the coroner of this county, and directing him to collect said judgment, be and the same is hereby quashed, set aside and held for naught, and the said coroner is hereby directed to return said execution into this court without further action, for the reason that said execution is not in the alternative."

An appeal was taken to this court in which we refused to review the foregoing order on account of the fact that no proper bill of exceptions had been presented in the case. Lawer Auto Supply v. Teton Auto Co., et al., 39 Wyo. 14, 269 P. 29, 273 P. 545. Thereafter, the plaintiff, Lawer Auto Supply, filed a motion in the case to be permitted to cause another execution to be issued. Leave was granted by order entered on January 15, 1929. An execution was issued on May 1, 1929, which had no alternative provisions. A motion to quash was filed on the same grounds that are urged as error in this court and hereafter mentioned. The motion came on for hearing and was overruled on May 3, 1929 and from this order the defendants, Teton Auto...