Mears v. Shaw

• Decision Date: 03 July 1905
• Citation: 81 P. 338,32 Mont. 575
• Parties: MEARS v. SHAW, Sheriff.
• Court: Montana Supreme Court

81 P. 338

32 Mont. 575

MEARS v. SHAW, Sheriff.

Supreme Court of Montana

July 3, 1905

Appeal from District Court, Fergus County; E.K. Cheadle, Judge.

Action by J.L. Mears, as trustee of the Deerfield Mercantile Company, a bankrupt, against Thomas M. Shaw, sheriff of Fergus county. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Kirk & Clinton, for appellant.

Huntoon Worden & Smith and H. Sol. Hepner, for respondent.

HOLLOWAY J.

This is an action in claim and delivery. The property which was the subject of litigation consisted of merchandise. The complaint alleges that in September, 1902, Myers and Huson were copartners, doing business in Fergus county as the Deerfield Mercantile Company. Paragraph 2 of the complaint is as follows: "That on or about the said 13th day of September, 1902, the said Deerfield Mercantile Company and the said Addison Myers and E.A. Huson were each and all adjudged bankrupts by the District Court of the United States in and for the District of Montana, at a term of said court held at the city of Helena, Montana, in proceedings then and there pending in said court, under the provisions of an act of the Congress of the United States entitled 'An act to establish a uniform system of bankruptcy throughout the United States,' approved July 1, 1898." Act July 1 1898, c. 541, 30 Stat. 544 [U.S. Comp. St. 1901, p. 3418]. It is alleged that on or about October 17, 1902, this plaintiff was elected trustee of said bankrupt estate, and that he immediately thereafter qualified and assumed the duties of his trust. It is then alleged that at the times mentioned in the complaint the defendant was sheriff of Fergus county that on August 13, 1902, he seized the property in controversy under and by virtue of a writ of attachment issued from the district court of Fergus county in an action wherein Louis S. Cohn was plaintiff and the Deerfield Mercantile Company was defendant; that a judgment in said action was entered on September 10, 1902, and execution issued thereon; that under such execution the defendant sheriff sold the goods in controversy on September 16, 17 and 18, 1902. The value of the property at the time of the sale and at the date of the commencement of this action is alleged to have been $1,360.19. It is further alleged that on October 20, 1902, and on February 13, 1903, the plaintiff demanded from the defendant Shaw the goods, wares, and merchandise, personal property, and money so levied upon and held by him belonging to the said Deerfield Mercantile Company, but that the defendant refused to deliver the same to the plaintiff. The prayer of the complaint is for the return of the property, or for $1,360.19, its value, in case return could not be had. To this complaint the defendant interposed a general demurrer, which was overruled, and thereafter filed his answer, and to this answer the plaintiff replied. Upon the trial the jury returned a verdict in favor of the plaintiff, and fixed the value of the property at $1,050. Upon this verdict, judgment was rendered and entered, and from the judgment, and from an order overruled his motion for a new trial, the defendant appealed.

Several errors are assigned, but only one will be considered, as it is determinative of these appeals, and as we think the others are without merit. Does the complaint state a cause of action? The plaintiff does not sue in his individual capacity, but as trustee in bankruptcy. Therefore his complaint must contain averments sufficient to entitle him to standing in court in such representative capacity. His election as trustee depended upon the prior adjudication in bankruptcy, a reference of the matter to a referee, a meeting of the creditors, and his selection as such trustee. In order to avoid the necessity of pleading the various steps taken in the course of the litigation, section 745 of the Code of...