Moore v. Crittenden

• Decision Date: 20 February 1922
• Docket Number: 4634.
• Citation: 204 P. 1035,62 Mont. 309
• Parties: MOORE ET AL. v. CRITTENDEN, SHERIFF, ET AL.
• Court: Montana Supreme Court

204 P. 1035

62 Mont. 309

MOORE ET AL. v. CRITTENDEN, SHERIFF, ET AL.

No. 4634.

Supreme Court of Montana

February 20, 1922

Appeal from District Court, Broadwater County; John A. Matthews Judge.

Action by J. E. Moore and another against H. C. Crittenden, Sheriff and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Day & Mapes and C. E. Pew, both of Helena, for appellants.

Warren W. Goodman, of Bozeman, for respondents.

HOLLOWAY J.

This action was instituted by the plaintiffs against the sheriff of Broadwater county and the surety on his official bond to recover damages for the conversion of mortgaged personal property.

It is alleged that on August 22, 1916, F. E. Russell and Mrs Clover M. Russell were indebted to plaintiffs in the sum of $2,800, evidenced by four promissory notes due, respectively December 1, 1916, June 1, 1917, December 1, 1917, and January 1, 1918, with interest; that, to secure the payment of this indebtedness, the makers of the notes executed and delivered to plaintiffs a chattel mortgage upon one 22 horse power Avery engine, one 36--60 Avery separator, with feeder, blower, sacker, and belts, and one Avery steel water tank; that the mortgage was filed for record in the office of the clerk and recorder of Broadwater county; that plaintiffs are the owners and holders of the notes; and that no part of the indebtedness has been paid, except the sum of $150, paid on February 7, 1917. Reference is made in the complaint to the terms of the mortgage which conferred upon the mortgagees the right to take possession of the mortgaged property upon default in the payment of the notes or whenever they should consider the possession of the property essential to the security of their debt. It is alleged further that on October 4, 1917, and while plaintiffs were the owners and holders of the chattel mortgage and the notes secured thereby, the sheriff wrongfully seized and sold the engine without paying, tendering, or depositing the amount due upon the indebtedness. The value of the engine and the amount of plaintiffs' damages are set forth, followed by a prayer for relief.

The answer admits the execution, delivery, and filing of the chattel mortgage and denies all the other allegations of the complaint. By way of justification, the defendants allege that at the time the engine was seized by the sheriff it was the property of W. E. Russell, and that it was sold under execution issued in an action wherein J. P. McCarthy was plaintiff and W. E. Russell was defendant. Issues were joined by reply, and the cause brought to trial before the court sitting with a jury. At the conclusion of the testimony each party moved for a directed verdict. Plaintiffs' motion was granted, defendants' motion overruled. a verdict returned, and judgment entered. From that judgment defendants appealed.

1. When defendants' motion for a directed verdict was denied, they did not request the court to submit any issues to the jury, and cannot now be heard to say that the right to a trial by jury was denied them. Fifty Associates Co. v. Quigley, 56 Mont. 348, 185 P. 155; Bank of Commerce v. United States F. & G. Co., 58 Mont. 236, 194 P. 158. Section 9364, Revised Codes 1921 (section 6761, Rev. Codes 1907), provides:

"Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict in favor of the party entitled thereto."

This section does not state any new or strange doctrine. The rule announced is recognized by the authorities everywhere, even in the absence of statute. 26 R. C. L. 1067; 38 Cyc. 1563; Abbott's Civil Jury Trials, 499; 2 Thompson on Trials (2d Ed.) §§ 2245, 2247. The decision in each of the cases cited above is in entire harmony with the rule of the statute and is so recognized by the overwhelming weight of authority.

In St. Paul Machinery Mfg. Co. v. Bruce, 54 Mont. 549, 172 P. 330, a motion for a directed verdict was made by plaintiff and granted by the court. After that ruling had been made, defendant Edwards moved for a directed verdict in his favor. The latter motion was without any effect whatever and was disregarded by this court in framing its opinion; but, independently of this consideration, the question now before us was not presented or determined, and the decision in that case cannot be held to be authority conflicting with the decisions in the later cases above.

2. It is contended that the complaint is insufficient in that it does not state that the mortgagors were the owners of the property at the time the mortgage was executed. Counsel for defendants raise this question, but do not argue it or present any authorities in support of their contention, and we have been unable to find any. It is the rule that in an action for conversion the plaintiff is not required to notify the defendant of the precise nature of his (plaintiff's) title, and that general averments of ownership and right to possession authorize the introduction of evidence to show the source or character of plaintiff's title. 21 Ency. Pl. & Pr. 1063, 1115; Reynolds v. Fitzpatrick, 40 Mont 593, 107 P. 902. It is true that plaintiffs must have had a general or special property in the chattel at the time of conversion and actual possession or right to the immediate possession (Glass v. Basin & Bay State M. Co., 31 Mont. 21, 77 P. 302); but, under a mortgage which gives to the mortgagee the right to immediate possession upon condition broken, such mortgagee may maintain an action against a third party who takes the property from the...