Manti City Sav. Bank v. Peterson

Decision Date19 July 1906
Docket Number1745
Citation30 Utah 475,86 P. 414
CourtUtah Supreme Court
PartiesMANTI CITY SAVINGS BANK v. PETERSON et al

Action by the Manti City Savings Bank against Niels Peterson and others. Judgment for plaintiff, and defendants appeal.

APPEAL from District Court, San Pete County; F. Erickson, Judge.

REVERSED.

J. M Cherry, Ephraim Hansen, and Jos. L. Rawlins for appellants.

W. D Livingston and Arthur Brown for respondent.

STRAUP J. McCARTY, J., concurs. BARTCH, C. J., concurs in the judgment.

OPINION

STRAUP, J.

1. The respondent, plaintiff below, brought this action against defendants to recover the possession of sheep. Upon findings made by the trial court, judgment was rendered in favor of plaintiff. The first assignment of errors assails the sufficiency of the complaint. It was alleged in the complaint "that the plaintiff on the 2d day of September, 1903, was entitled to the possession" of the sheep; that on that day a demand for the possession was made by the plaintiff, but the defendants refused to deliver. The complaint was filed September 3, 1903. The defendants' demurrer to the complaint for want of facts, and their objection on the same ground to the introduction of evidence, were overruled. It is contended that the complaint is insufficient because it does not allege that the plaintiff was the owner or entitled to the possession of the property at the time the action was commenced. The contention must be sustained.

In a suit to recover personal property the complaint must show the ultimate fact that the plaintiff was the owner or entitled to the possession at the time of the commencement of the action; and it is not sufficient to merely aver that he was the owner or entitled to possession at some period prior to that time. (Fredericks v. Tracy, 98 Cal. 658, 33 P. 750; Affierbach v. McGovern, 79 Cal. 268, 21 P. 837; Masterson v. Clark, [Cal.], 41 P. 796; Holly v. Heiskell, 112 Cal. 174, 44 P. 466; Kimball Co. v. Redfield, 33 Ore. 292, 54 P. 216; Cobbey on Replevin, sections 97, 98.) This principle of law is not disputed by the respondent, but it is claimed that the allegation of right to possession on the 2d day of September, the complaint having been filed on the 3d, is a sufficient allegation, and equivalent to the one that the plaintiff was entitled to the possession at the commencement of the action. This claim is answered, adversely to the respondent, by the court in Fredericks v. Tracy, where, in speaking of the difference between that case and the case of Afflerbach v. McGovern, it said:

"The alleged ownership and right of possession in that case was long before the suit brought, while here it is placed at a date only two days prior to the commencement of the action; but this does not alter the principle, which is that the plaintiff must show his ownership and right to possession at the time the action is commenced."

No such averment having been made, the court erred in overruling the demurrer and objection.

2. Inasmuch as the case must be remanded for a new trial, and that other points presented may again be raised on retrial, it is proper that we express our opinion on them. It is urged that the defendants' motion for nonsuit ought to have been granted. That claim is made, principally, on the ground that the property was not sufficiently identified, and that the plaintiff had not shown ownership nor right to possession of the property. In December, 1902, one Peter Thompson, to secure an indebtedness, gave the plaintiff a chattel mortgage on 1600 head of sheep, and their increase marked "with two upper bits in the left ear, and an upper bit in the right ear, branded with 'T' on the back." By a provision in the mortgage, on default of payments, the plaintiff was given the right to take the property into his possession. Such default was made August 1, 1903. At about that time the mortgagor died at his sheep camp, and in the possession of about 2,900 head of sheep, of which about 2,163 head were marked and branded as in the mortgage described. After the death of the mortgagor, and on August 2d, or 3d, the plaintiff engaged a person who was acquainted with the deceased's sheep, to go to the camp and see "if everything was all right." On his arrival at the camp he found the sheep in charge of two men and boys. He hired one of them to look after the sheep until the plaintiff made other arrangements. On the 4th or 5th of August another person was employed by plaintiff to take the sheep with Peter Thompson's mark on them, and as described in the mortgage. In his effort to do so the person in charge refused to let him have them. Thereafter the sheep so marked were taken by the plaintiff on its writ. It was also shown that such mark was Peter Thompson's mark, and that for a number of years prior to his death he was in the sheep business, and each year had in his possession upwards of 2,000 sheep marked as in the mortgage described. The note and mortgage, of course, were admitted in evidence and proof made of nonpayment and default. We think this evidence, prima facie, at least, tended to show that the deceased was the owner of the sheep at the time of the execution of the mortgage, and sufficiently identified the property described in the mortgage. The court, therefore, properly overruled the motion.

3. That defendants introduced evidence tending to show that prior to the execution of the mortgage they had leased sheep to Peter Thompson, and which were of the herd mortgaged by him to the plaintiff. Neils Thompson, one of the defendants, testified "I am a brother of Peter Thompson. I was acquainted with the band of sheep in Peter Thompson's possession in 1902. I had 915 head of sheep in that band in in 1902. I first delivered him something over 100 head in 1896, upon the...

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    ... ... other party. (Bank of Marietta v. Pindall, 2 Rand ... (23 Va.) 465.) ... Tracy, 98 Cal. 658, 33 P. 759; Manti City Sav. Bank ... v. Peterson, 30 Utah 475, 116 Am. St ... ...
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    ...61 Ill. 343, 14 Am.Rep. 60; Drake v. White, 117 Mass. 10; Smith v. Niles, 20 Vt. 315, 49 Am.Dec. 782; Manti City Savings Bank v. Peterson et al., 30 Utah 475, 86 P. 414, 116 Am.St.Rep. 862. See also annotations in 32 A.L.R. 859 et seq., and 150 A.L.R. 269 et Defendant cites in support of hi......
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