Owen v. Burlington

• Decision Date: 31 August 1898
• Citation: 11 S.D. 153,76 N.W. 302
• Court: South Dakota Supreme Court
• Parties: W. H. OWEN and C. A. Margeson, dba Owen & Margeson, Plaintiffs and respondents, v. BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY, Defendant and appellant.

11 S.D. 153

76 N.W. 302

C. R. & N. Ry. Co.,(1898)

W. H. OWEN and C. A. Margeson, dba Owen & Margeson, Plaintiffs and respondents, v. BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Codington County, SD

Hon. J. O. Andrews, Judge.

Affirmed

Geo. W. Case

Attorneys for appellant.

D. C. Thomas, W. R. Thomas

Attorneys for respondent.

Opinion filed August 31, 1898

FULLER, J.

Mortgagees brought this action in claim and delivery to recover the possession of a portable contrivance called a “merry-go-round,” consisting of revolving Chariots and wooden horses, operated upon a platform by a steam engine, all of which the defendant, a common carrier, detains in order to maintain its lien for transportation at the request of a mortgagor hi possession. As we view the record, the only question essential to a determination of this appeal by the defendant from a judgment in favor of plaintiffs is whether the lien of a chattel mortgage properly filed is prior to that given by statute to a common carrier for freight subsequently earned. In the case of Wright v. Sherman, 17 LRA 792 (1892), this court having held the lien for pasturing mortgaged stock received from the mortgagor inferior to the lien of a properly filed mortgage, the question must be considered settled in this jurisdiction, unless, upon principle, a material distinction exists between the lien of a railroad company for carrying and that of an agistor for caring for personal property previously mortgaged. The essential facts are that the mortgage was executed on the 19th day of August, 1893, and duly filed in Codington county, where the mortgagors resided, and where appellant now detains the property described in said instrument from the possession of respondents. In addition to the constructive notice thus imparted by public records, appellant actually knew of the existence of the mortgage, and that respondents’ agent and attorney was looking after the property, before the same was received from the mortgagors at Clear Lake, and consigned to one of them at Watertown. Knowledge of such proposed shipment and the fact that respondents allowed the mortgagors to remain in possession, and move the property from place to place, for use, within the state, is not equivalent to consent upon their part that the lien of appellant should be paramount to this mortgage, and there is nothing in the record...