Luther v. Lee
| Citation | 62 Mont. 174 |
| Decision Date | 23 January 1922 |
| Docket Number | No. 4575.,4575. |
| Parties | LUTHER v. LEE ET AL. |
| Court | United States State Supreme Court of Montana |
LUTHER
v.
LEE ET AL.
No. 4575.
Supreme Court of Montana.
Jan. 23, 1922.
Appeal from District Court, Big Horn County; Charles A. Taylor, Judge.
Action by John Luther against Walter O. Lee and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Guinn & Maddox, of Hardin, and McIntire & Murphy, of Helena, for appellants.
H. W. Bunston, of Hardin, E. E. Enterline, of Denver, Colo., and C. F. Gillette, of Hardin, for respondent.
GALEN, J.
This is an action in claim and delivery for the recovery of a certain Ford Touring car of the admitted value of $500. The car was taken from plaintiff's possession on April 9, 1918, by a deputy sheriff of Big Horn county, on instruction from the defendant sheriff, pursuant to the terms of a certain chattel mortgage covering, with others, the Ford in controversy, executed by one Thomas C. Smith as mortgagor, to the Stockmen's National Bank of Hardin, which mortgage, after the maturity of the principal obligation, was transferred and assigned to the defendant Walter O. Lee, and was his property at the time the car was seized.
On commencement of this action, April 20, 1918, the plaintiff furnished the coroner with a satisfactory bond on redelivery of the car, and it was by the coroner returned to the plaintiff on April 25, 1918. The complaint alleges that the defendant “did willfully, wantonly, oppressively, and wrongfully take said automobile from the possession of the plaintiff; that ever since said taking the said defendants have willfully, wantonly, oppressively, and wrongfully detained, and do now willfully, wantonly, oppressively, and wrongfully detain said automobile from the possession of this plaintiff, to the damage of the plaintiff in the sum of $500.” The prayer is for the recovery of the possession of the car, or for $500, its value, “together with the sum of $500, his damages sustained by reason of the unlawful taking and holding of the said car,” and for costs.
The defendants pleaded by way of justification that the car was covered by chattel mortgage from the plaintiff's vendor, Thomas C. Smith, the assignment of the mortgage to the defendant Lee, its nonsatisfaction, breach of its terms, and instructions given to the sheriff in accord with its provisions to take possession of the car and sell the same, and that the car was taken in peaceable manner according to such directions. The answer contains prayer for the return of the car or its value, $500.
The reply admits the existence...
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