Ramsey v. Rodenburg

• Decision Date: 05 February 1923
• Docket Number: 10514.
• Citation: 212 P. 820,72 Colo. 567
• Parties: RAMSEY v. RODENBURG et al.
• Court: Colorado Supreme Court

212 P. 820

72 Colo. 567

RAMSEY v. RODENBURG et al.

No. 10514.

Supreme Court of Colorado

February 5, 1923

Department 2.

Error to District Court, Washington County; L. C. Stephenson Judge.

Action by R. A. Ramsey against the Otis Farmers' Elevator &amp Supply Company, in which W. A. Rodenburg intervened. Judgment for intervener, and plaintiff brings error, and asks for a supersedeas.

Supersedeas denied, and judgment affirmed.

Isaac Pelton and Samuel Chutkow, both of Akron for plaintiff in error.

Frank D. Allen, of Akron, for defendant in error.

WHITFORD J.

The action was in replevin brought by plaintiff in error, as plaintiff, against the Otis Farmers' Elevator & Supply Company, as defendant. Defendant in error Rodenburg intervened. The case was submitted to the district court on an agreed statement of facts. The material facts are that the plaintiff stored 849 and the intervener 2,101 bushels of wheat with the defendant elevator company, and the two quantities of grain were intermixed in one bin. Thereafter it was discovered that the total amount of wheat in the elevator was less than the quantity belonging to the plaintiff and the intervener. Acting on this information, the plaintiff brought replevin proceedings, levying on 1,088 bushels of wheat, and thereafter, on the same day, the intervener caused a writ of replevin to be levied on 409 bushels of wheat, which was all of the wheat left in the elevator after plaintiff had levied his replevin writ on 1,088 bushels. Thereafter the intervener filed his petition of intervention in the action brought by plaintiff, denying plaintiff's right to 1,088 bushels, and at the same time claiming the right to prorate the wheat taken in the two replevin suits. The court sustained the petition of intervention, and entered judgment accordingly. The plaintiff brings error and asks for a supersedeas.

It is conceded that, where goods are mixed in a common mass by several owners, and are of the same nature and quality, although not capable of separation by identification of each particle, yet, if a division can be made, as in case of wheat, then each owner may claim his aliquot part of the common mass and enforce his right in an action of replevin. Wells on Replevin,§ 205; Cobbey on Replevin, § 408; Kaufmann v. Schilling, 58 Mo. 218; Grimes v. Cannell, 23 Neb. 187, 36 N.W. 479.

Counsel contends, however, that, the plaintiff having first levied his writ, and having taken possession of the wheat, a segregation as a matter of fact had already taken place by such proceeding, and that a prorating in such circumstances could not be had. It does not so appear to us. Plaintiff intermixed 849 bushels of his wheat with 2,101 bushels belonging to intervener, and then levied on 1,088 bushels. Intervener took the remaining 409 bushels of wheat, and then intervened in...