Nachtrieb v. Stoner

• Decision Date: 01 February 1872
• Citation: 1 Colo. 423
• Parties: NACHTRIEB v. STONER.
• Court: Colorado Supreme Court

1 Colo. 423

NACHTRIEB v. STONER.

Supreme Court of Colorado

February, 1872

Error to Probate Court, Lake County

THE record of the court below consisted of certified copies of the papers filed in that court, together with some informal minutes of the proceedings of the court.

The judgment was in the following form: 'Thereupon, judgment is entered in favor of the plaintiff, William Stoner, and against the defendant, Charles Nachtrieb; that the said plaintiff have and recover of the said defendant the sum of $750, being the damages assessed by the jury in said case with costs.'

At the trial the plaintiff gave in evidence that defendant, on the 10th day of November, A. D. 1870, filed an affidavit and bond with George B. Berry, a justice of the peace of Lake county and that Berry thereupon issued a writ of attachment against the plaintiff, William Stoner, and one Thomas Murphy, which writ was levied on the two mares described in the declaration, and was returned without personal service on Stoner or Murphy; that the cause was continued by the justice at the return day of the writ, and notices were posted as directed by the statute; that, upon the adjourned day, said justice of the peace gave judgment against Stoner and Murphy and in favor of Nachtrieb, for $300 and costs of suit; that the two marges were sold under said judgment to one George Holger, who was requested to purchase them by Nachtrieb. The plaintiff was sworn, and testified that he purchased the mares of Murphy, on the 1st of October, 1870; that at that time one of the mares was in charge of John Burnett, and we directed him to take charge of the other one; that Burnett had charges against Murphy of $15, and there was an understanding that Burnett was to keep the mere till he got his pay; that the mares were worth $300; that he did not hear of the suit of Nachtrieb against Stoner and Murphy, until about the first of April; that witness did not, nor did witness and Murphy owe Nachtrieb any thing at the time of the commencement of the suit before Berry. Thomas Murphy testified to substantially the same facts.

John Burnett testified that he delivered one of the mares to the constable on payment of his charges, which amounted to $15. The plaintiff also put in evidence the affidavit and bond, filed with the justice of the peace, and also the writ of attachment issued by him. In the affidavit it was alleged: 'That Thomas Murphy and William Stoner have departed for the purpose of defrauding their creditors, and are about to remove their property to his, the said Charles Nathrop's, disadvantage and loss, with the intent of placing it beyond the reach of their creditors.' The bond was made to the constable as obligee therein. Plaintiff also gave in evidence a transcript of the docket of the justice of the peace in the case of Nachtrieb v. Stoner and Murphy.

In the writ of attachment the cause recited for the issuing thereof was, 'that Thomas Murphy and William Stoner reside out of the county.' The defendant gave in evidence that Murphy and Stoner bought a ranch of him for $300, and that the amount was still unpaid; that he commenced suit before the justice of the peace in good faith, and that the mares were worth $240.

The court refused to instruct the jury: 'That if any person had a lien upon the property named in the plaintiff's declaration, by which any sum of money was to be paid by the plaintiff before he could reduce the same into his possession, they should find for the defendant.'

Upon request of the plaintiff, the court instructed the jury: 'That by his record, as appears in evidence, the magistrate had no jurisdiction which would justify the seizure of any property of William Stoner, and if the jury believed, from the evidence, that the horses in question were seized in that suit under the affidavit, writ and bond referred to, it does not amount to a justification, and the jury should find for the plaintiff.' There were other instructions which it is not necessary to refer to.

Mr. M. BENEDICT, for plaintiff in error.

Messrs. HUGHES & MORRISON, for defendant in error.

WELLS J.

The record, which has been certified to us, contains many gross irregularities, and the original appears to have been made up without the slightest knowledge of what matters the record of a court ought or ought not to contain. Nevertheless, sufficient appears to show that the judgment complained of was given at a term of the probate court, convened, constituted and held in accordance with law. The objections urged on the part of the plaintiffs in error in this respect are therefore not well taken.

Neither are we disposed to interfere with the judgment in respect of the damages awarded by the jury. The plaintiff in the court below complained in effect, that the defendant had procured an inferior court to issue an attachment against the plaintiff's estate in a case where such process was unwarranted by law, and to give judgment and direct a sale of the estate upon mere constructive notice of the proceeding, he being then a resident of the territory, and entitled to actual notice by service of process; that by virtue of the sale so ordered, the defendant had possessed himself of, and converted to his own use, property of the plaintiff to the value of several hundred dollars, and that all this was done in the prosecution of a pretended claim of indebtedness which never existed. The jury have found that the facts are as asserted by the plaintiff; the evidence warrants the finding, and, as we think, makes a strong case for the award of punitory damages, and the amount allowed by the jury does not seem to us to be excessive.

The circumstance, that before the alleged trespass a portion of the property was in the possession of a third person who had a special property therein by way of lien or pledge, does not, as we think, have the effect to defeat the plaintiff's action or modify the rule of damages. True, it is, in general, that in trespass de bonis the plaintiff must show, that at the time of the trespass complained of he had actual possession of the goods, or had property therein, either general or at least special, with the right to the immediate possession, and an outstanding possession in a third person, with the right in such person to retain it until the discharge of an indebtedness or the happening of some other condition might, with reason, be said to disable the general owner from bringing trespass. Gauche v. Mayer, 27 Ill. 134; Thorpe v. Burling, 11 Johns. 285; Gay v. Smith, 38 N.H. 171.

For in such case the interest of the general owner is merely reversionary and not present, and for an injury to such interest case lies but not trespass. But, in the present case, the demand for which the goods had been held in pledge was paid off by the plaintiff in the attachment, now plaintiff in error, before the levy, which involves the trespass complained of, and we think this, by construction of law, restored the general owner to his possession, for, though the pledgee of goods may clearly enough transfer possession thereof to another, as his servant or bailee, without waiver of his lien, and though, as we conceive, any third person may advance to the pledgee his demand, receiving possession of the goods as his security, and may lawfully retain such possession until repaid his advances, yet the authorities appear to be uniform, that if the pledgee or lienholder set up any title or claim inconsistent with or independent of the lien, this will amount to a waiver thereof. 3 Pars. on Cont. 244.

Therefore, inasmuch as the possession of the constable who levied the attachment complained of was from the beginning independent of and hostile to the lien by which the property had before been held-the very purpose for which the money was advanced to the pledgee being to enable the officer to proceed with the property in a manner inconsistent with the lien-it cannot be said that this incumbrance or special property followed the goods into the custody of the constable. On the contrary, by the payment of the amount for which the goods had before been held, the lien was dissolved and the right to the immediate possession was eo instanti restored to the general owner.

There remains to be considered the question to which the argument was chiefly directed, whether the plaintiff's action was rightly conceived, that is to say, whether trespass lies here or case....