More v. W. Grain Co.

• Decision Date: 08 July 1915
• Citation: 31 N.D. 369,153 N.W. 976
• Parties: MORE et al. v. WESTERN GRAIN CO.
• Court: North Dakota Supreme Court

31 N.D. 369

153 N.W. 976

MORE et al.

v.WESTERN GRAIN CO.

Supreme Court of North Dakota.

July 8, 1915.

Syllabus by the Court.

Where the service of a paper by one party has the effect of setting time to run against the opposite party, the time which thus begins to run is twice as long when the service is by mail (section 7954, Compiled Laws 1913) as when made personally.

This rule is applicable to appeals.

Where a complaint in an action for conversion contains allegations of an actual conversion, an averment of demand and refusal is not required.

Under the provisions of section 7414, Compiled Laws 1913, an order of interpleader may be allowed only (1) in an action upon contract; (2) in an action for specific real property. (3) in an action for specific personal property.

An order of interpleader should not be allowed, under the provisions of section 7414, Compiled Laws 1913, in an action for damages for conversion of personal property.

Appeal from District Court, Hettinger County; Crawford, Judge.

Action for conversion by A. Y. More and J. L. More, a partnership under the firm name of More Bros., against the Western Grain Company. From an order interpleading Albert L. Lane, receiver, as party defendant, plaintiffs appeal. Reversed.

See, also, 149 N. W. 564.J. K. Murray, of Mott, for appellants. Emil Scow, of Bowman, and F. C. Heffron, of Dickinson, for respondent.

CHRISTIANSON, J.

This is an appeal from an order of interpleader. The facts necessary for a determination of the questions presented on this appeal are as follows:

This action was brought to recover damages for the alleged conversion of 1,331 bushels and 50 pounds of wheat and 366 bushels of barley, upon which plaintiffs claim a lien by virtue of a chattel mortgage. The complaint is in the usual form, and alleges the execution and delivery to plaintiffs by one Charles Procise of three promissory notes on the 19th day of August, 1912, aggregating in all $1,300, and the subsequent execution and delivery of a chattel mortgage to secure the payment of such notes, and the filing of such mortgage for record in the office of the register of deeds of Hettinger county on February 4, 1913. The complaint also alleges the stipulations and conditions of the mortgage, and that default was made in such conditions, entitling the plaintiff to possession of the crops. The complaint further alleges:

“That on or about the 14th day of October, 1913, the defendant converted all of the aforesaid grain to its own use, which grain was at all times herein mentioned of the value of $1,300; that plaintiffs claim the highest market price of said grain since the date of said conversion.”

The summons and complaint in this action were served upon the defendant, Western Grain Company, on December 4, 1913. Thereafter, on December 28, 1913, pursuant to notice, the defendant moved the court that one Albert L. Lane be substituted as defendant in the above-entitled action, and that the Western Grain Company be discharged from liability to any or either of the parties hereto. The motion was based upon an affidavit of the manager of the defendant, Western Grain Company, wherein it is admitted that the grain described in the complaint is deposited and stored in the warehouse of the defendant at Regent, N. D., but that the grain is also claimed by one Albert L. Lane, who on the 1st day of August, 1913, was appointed receiver of all the property of said Procise, and that said Lane makes a demand upon the defendant for the grain or the proceeds thereof; that said defendant is unable to determine whether the plaintiff, or said Lane, as receiver, is entitled to the grain or the proceeds thereof. In opposition to the motion of interpleader the plaintiffs offered an affidavit of their attorney, J. K. Murray, to the effect that the plaintiffs did not seek to recover possession of the grain, but that the action was one in tort for damages caused to plaintiffs by reason of the conversion of the grain by the defendant; that possession of the grain had been demanded numerous times, but that defendant had refused to deliver possession; that when the grain was delivered to defendant by the mortgagor, Charles Procise, the defendant mixed such grain with other grain in its elevator, and that said defendant issued to said Lane storage tickets, and not special bin tickets, for such grain, and that the defendant had shipped the grain out of the state. The plaintiffs also offered a sheriff's return in an action in claim and delivery, brought by the above-named plaintiffs against the Western Grain Company and said Albert L. Lane, as defendants, wherein the sheriff certifies that he was unable to obtain possession of the grain by reason of the fact that the defendant, Western Grain Company, had mixed such grain with other grain in its elevator, and was therefore unable to sort the same from other grain in its elevator and deliver the same to the sheriff. The statements in the affidavit of Murray and in the sheriff's return were not denied.

Upon these affidavits the court made an order directing that Albert Lane, as receiver of Charles Procise, be substituted as defendant in the action in place of the Western Grain Company, and that said Western Grain Company be dismissed and discharged as defendant in all particulars. This appeal is taken from the order so made.

[1][2] At the threshold of this case we are confronted with a motion to dismiss the appeal on the ground that it was not taken within the time allowed by law. In this state an appeal may be taken from an appealable order “within sixty days after written notice of the same shall have been given to the party appealing.” Section 7820, Compiled Laws 1913. The question presented by the motion is whether the appeal was taken within 60 days after written notice of the order was given to the plaintiffs. The affidavits submitted in support of the motion show that on the 3d day of January, 1914, F. C. Heffron, one of the attorneys for the defendant at Dickinson, N. D., mailed the original order and a copy thereof to J. K. Murray, the attorney for the plaintiffs, with a request that said Murray admit service on the original order. Thereafter, on January 17, 1914, Murray admitted service thereof and returned the same to Heffron. The reason for the delay in the admission of service is not altogether clear, and as we view the matter is immaterial. The attorneys for the defendant claim that service of notice of the order became complete on the 3d day of January, 1914, when the envelope containing the order was deposited in the post office at Dickinson, N. D., and that the appeal was not taken within 60 days after the order was served upon plaintiff's attorney. The appeal was taken and perfected on March 17, 1913. The original order contained in the judgment roll has indorsed thereon the written admission of plaintiff's attorney, Murray, showing that the order was served on January 17, 1913. This order, together with the admission of service, was filed in the office of the clerk of the district court and transmitted to this court pursuant to the appeal.

Did defendant's attorney, at the time of service and at the time he caused the order, with proof of service thereof, to be filed in the office of the clerk of the district court, intend to rely on service by mailing? We think not. He filed no affidavit of mailing, but relied on the admission of service which he had requested and obtained. The claim of service by mailing is utterly inconsistent with the request for such admission of service and the subsequent conduct of defendant's counsel, and at variance with the proof of service filed in the court below and transmitted to this court on this appeal. But even if the order was served by mailing, and defendant's counsel in position to raise the question at this time, still we are satisfied that the appeal was taken in time. Section 7954 of the 1913 Compiled Laws reads as follows:

“When the service is by mail it shall be double the time required in cases of personal service, except service of notice of trial which may be made sixteen days before the day of trial including the day of service.”

This court, in the case of Clyde v. Johnson, 4 N. D. 92, 58 N. W. 512, in construing this section, held that when a complaint is served by mail the time in which to answer or demur is twice as long as when served personally, and that the defendant had 60 days, instead of 30 days, in which to answer or demur to the complaint. The court said:

“We are clear that the service of the demurrer was not too late. The service could be properly made by mail. Comp. Laws, 5329. ‘In case of service by mail the paper must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence and the postage paid.’ Id. 5330. ‘When the service is by mail it shall be double the time required in cases of personal service.’ Id. 5331. If the complaint had been personally served upon defendant's counsel, they would, under the statute, have been required to serve their answer thereto within 30 days from the date of such personal service. Id. 4895. But the complaint was served by mail, and it follows, under 5331, supra, that the defendant had double time in which to answer-i. e., 60 days-and the demurrer was served within 60 days. But appellant's counsel contends that the facts above set forth show a personal service by delivery of a copy of the complaint under Id. 4898, 4899, and that the return receipt, signed by the defendant's attorneys, at the date of receiving the registered letter, constitutes proof that the copy of the complaint was received by delivery on the day the registered letter was taken from the post office at Fargo by defendant's attorneys. The theory of counsel that service by mail is a personal service, because it is shown that the letter mailed was received on a date certain, is novel. No authority is cited in support of the...