Phipps v. Taylor

• Citation: 15 Or. 484,16 P. 171
• Parties: PHIPPS et al. v. TAYLOR et al.
• Decision Date: 14 December 1887
• Court: Supreme Court of Oregon

16 P. 171

15 Or. 484

PHIPPS et al. v. TAYLOR et al.

Supreme Court of Oregon

December 14, 1887

Appeal from circuit court, Douglas county.

Robert Phipps and Cyrus Smith, plaintiffs, sued G.A. Taylor and H.C Slocum, defendants in replevin.

W.R. Willis, for respondents.

J.W Hamilton, for appellants.

STRAHAN J.

This is an action of replevin. The property sought to be recovered is 55,000 feet of lumber piled in the mill and mill-yard at Gurney's mill in Douglas county, Oregon. The lumber was distributed in from 12 to 15 separate piles, and each lot is particularly described in the complaint, and the entire quantity is alleged to be of the value of $500. The defendants allege in their answer, after denying the taking as wrongful, and denying each of the other allegations specifically, that G.A. Taylor at said time was sheriff of Douglas county, Oregon, and the other defendant was his deputy; that at said time one William Trask was the owner of about 13,000 feet of said lumber, and Voltair Gurney was the owner of the residue. The answer then alleges facts showing a seizure of Voltair Gurney's interest in all of said lumber, under and by virtue of an execution against him and G.W. and R.M. Gurney issued out of the circuit court of Douglas county, Oregon, in favor of William Trask, for $117.50, with interest and costs. The answer demanded a return of the whole of said property to the defendants, which had been replevied from them soon after said action was commenced. The reply denied that either Trask or Gurney owned any part of said lumber. Upon a trial before a jury, the following verdict was returned: "We, the jury in the above-entitled cause, find that the defendants are entitled to the following described property in the plaintiff's complaint described, to-wit, (3-5) three-fifths of each and every pile or clear of lumber described in plaintiff's complaint, or its value thereof; and remainder belongs to the plaintiffs." Upon the return of this verdict, the defendants moved for judgment in their favor and against the plaintiffs, for the return of all of said lumber, or for the sum of $300, the value thereof, in case delivery could not be had, and for costs and disbursements. At the same time, the plaintiffs moved for a judgment in their favor for two-fifths of each pile of lumber described in the complaint, or for the sum of $200, the value thereof, in case delivery could not be had, and for costs and disbursements. The court rendered a judgment in favor of the plaintiffs as requested in their motion, and taxed their costs at $94.17. The court then rendered a further judgment in favor of the defendant, and against the plaintiffs, to the effect that they recover a judgment against Robert Phipps and Cyrus Smith; that they are entitled to the possession of three-fifths of the property described in the plaintiff's complaint, or its value, to-wit, $300, and that execution issue therefor. From this judgment defendants have appealed to this court. There is no bill of exceptions in the record, and there is no question of law presented by the pleadings. The only question discussed on the argument was, what judgment ought the court to have rendered, if any, on the verdict of the jury?

The first inquiry to which our attention must be directed is whether the verdict was sufficient to enable the court to render any judgment in the cause in favor of either party. Hill's Code, § 214, prescribes, in substance, what the verdict shall contain in this class of actions, as follows: "In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof," etc.

1. In this action the plaintiffs claimed to be the owners, and to have the right to the possession, of the entire property in controversy; but it appears from the verdict of the jury that he was only entitled to the possession of an undivided part thereof. This part had not been separated or severed from the entire lots or piles, but included an undivided portion of each. In such case, replevin will not lie. Kindy v. Green, 32 Mich. 310; Price v. Talley's Adm'r, 18 Ala. 21; Parsons v. Boyd, 20 Ala. 112; Kimball v. Thompson, 4 Cush. 441; Hart v. Fitzgerald, 2 Mass. 509; Lacy v. Weaver, 49 Ind. 373; Alwood v. Ruckman, 21 Ill. 200; Parker v. Garrison, 61 Ill. 250; Sargent v. Courrier, 66 Ill. 245; Guille v. Wong Fook, 13 Or. 577, 11 P. 277. Upon the point now under discussion, we might well have placed our decision on the authority of Guille v. Wong Fook, supra, alone. It is decisive of the point as to the insufficiency of this verdict to authorize a judgment in favor of the plaintiff. In that case, the plaintiff brought replevin for "sixty-eight head of hogs on the macadamized road in said county on the place formerly kept by Wong Fook;" and the jury found that the plaintiff was entitled to that portion of the property described in the complaint to-wit, "forty-nine hogs." This verdict was insufficient to support a judgment for 49 of the hogs described in the complaint.

2. But this verdict is insufficient for another reason. By the complaint, the plaintiffs claimed to be the owner of the lumber in controversy, as well as to be entitled to its possession. The verdict is silent as to the ownership of the property, and that issue remains undetermined. In such case no judgment can be rendered for the plaintiff. Bemus v. Beekman, 3 Wend. 668; Emmons v. Dowe, 2 Wis. 235; Heeron v. Beckwith, 1 Wis. 27; Beemis v....