Rock Island Plow Co. v. Western Implement Co.
| Decision Date | 03 April 1911 |
| Citation | 132 N.W. 351,21 N.D. 608 |
| Court | North Dakota Supreme Court |
Rehearing denied Sept. 12, 1911.
Appeal from District Court, Ward County; Goss, Judge.
Action by the Rock Island Plow Company against the Western Implement Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Plaintiff sustained. Judgment affirmed.
R. H Bosard and G. W. Twiford, for appellant.
Bankruptcy court dealing with property in its possession has power to pass on liens thereon. McHenry v. La Societe Francaise D'Epargnes, 95 U.S. 58, 24 L.Ed. 370; Whitney v Wenman, 198 U.S. 539, 49 L.Ed. 1157, 25 S.Ct. 778; Ray v. Norseworthy, 90 U.S. 128, 23 L.Ed. 116; Houston v. City Bank, 6 How. 486, 12 L.Ed. 526; Clarke v. Rosenda, 5 Rob. (La.) 39; Conrad v. Prieur, 5 Rob. (La.) 49; Lewis v. Fisk, 6 Rob. (La.) 162.
To justify sale by bankruptcy court, notice must be given of the application to sell. The Lottawanna (Wilson v. Bell) 20 Wall. 201, 226, 22 L.Ed. 259, 264; Nations v. Johnson, 24 How. 195, 206, 16 L.Ed. 628, 632; Harris v. Hardeman, 14 How. 339, 14 L.Ed. 444; Borden v. Fitch, 15 Johns. 141, 8 Am. Dec. 225; Buchanan v. Rucker, 9 East, 192, 1 Campb. 65, 9 Revised Rep. 531; Webster v. Reid, 11 How. 460, 13 L.Ed. 770; Boswell v. Otis, 9 How. 350, 13 L.Ed. 170; Oakley v. Aspinwall, 4 N.Y. 513; Weed v. Weed, 25 Conn. 337; Means v. Means, 42 Ill. 50; Hill v. Hoover, 5 Wis. 386, 68 Am. Dec. 70; Wallis v. Thomas, 7 Ves. Jr. 292; Rockland Water Co. v. Pillsbury, 60 Me. 427; Lane v. Wheless, 46 Miss. 666; Hettrick v. Wilson, 12 Ohio St. 138, 80 Am. Dec. 337.
Referee is regarded as the court. Re Simon, 151 F. 507, 18 Am. Bankr. Rep. 205; Re McIntire, 142 F. 593, 16 Am. Bankr. Rep. 85; Re Moody, 131 F. 525; Re Kellogg, 57 C. C. A. 547, 121 F. 333, 10 Am. Bankr. Rep. 7; Re Sanborn, 96 F. 551, 3 Am. Bankr. Rep. 54; Re Drayton, 135 F. 883, 13 Am. Bankr. Rep. 602; Hewitt v. Berlin Mach. Works, 194 U.S. 296, 48 L.Ed. 986, 24 S.Ct. 690; Re Rochford, 59 C. C. A. 388, 124 F. 182, 10 Am. Bankr. Rep. 608; Bryan v. Bernheimer, 181 U.S. 188, 45 L.Ed. 814, 21 S.Ct. 557; Mueller v. Nugent, 184 U.S. 1, 46 L.Ed. 405, 22 S.Ct. 269.
Blaisdell, Bird, & Blaisdell, for respondent.
Res judicata must be pleaded. Kilpatrick v. Kansas City & B. R. Co. 38 Neb. 620, 41 Am. St. Rep. 741, 57 N.W. 664; Bays v. Trulson, 25 Or. 109, 35 P. 26; Meiss v. Gill, 44 Ohio St. 253, 6 N.E. 656; Troyer v. Dyar, 102 Ind. 396, 1 N.E. 728; Brown v. Campbell, 110 Cal. 644, 43 P. 12; McLean v. Baldwin, 136 Cal. 565, 69 P. 259; Boston & C. Smelting Co. v. Reed, 23 Colo. 523, 48 P. 515; Evans v. Woodsworth, 213 Ill. 404, 72 N.E. 1082; First Nat. Bank v. Williams, 126 Ind. 423, 26 N.E. 75; Reilly v. Bader, 50 Minn. 199, 52 N.W. 522; Warder v. Baldwin, 51 Wis. 450, 8 N.W. 257; Eikenberry v. Edwards, 67 Iowa 14, 24 N.W. 570; Independent Dist. v. Merchants' Nat. Bank, 68 Iowa 343, 27 N.W. 255; Delphi v. Startzman, 104 Ind. 343, 3 N.E. 937; Parliman v. Young, 2 Dak. 175, 4 N.W. 139, 711; Fahey v. Esterley Mach. Co. 3 N.D. 220, 44 Am. St. Rep. 554, 55 N.W. 580; Morris v. Ewing, 8 N.D. 99, 76 N.W. 1047.
Federal courts will not interfere with property in the custody of a state court, nor tolerate interference by a state court with property in Federal courts. Re Russell, 41 C. C. A. 323, 101 F. 248; Linstroth Wagon Co. v. Ballew, 8 L.R.A.(N.S.) 1204, 79 C. C. A. 470, 149 F. 960, and cases cited; Re E. W. Newton & Co. 83 C. C. A. 23, 153 F. 841; Louisville Trust Co. v. Cincinnati, 22 C. C. A. 334, 47 U. S. App. 36, 76 F. 296; Re L. Rudnick & Co. 88 C. C. A. 85, 160 F. 903.
R. H. Bosard and G. W. Twiford, in reply.
Objection that res judicata is not pleaded cannot be first raised on appeal. Kilpatrick v. Kansas City & B. R. Co. 38 Neb. 620, 41 Am. St. Rep. 741, 57 N.W. 664; Bays v. Trulson, 25 Or. 109, 35 P. 26; Meiss v. Gill, 44 Ohio St. 253, 6 N.E. 656; Troyer v. Dyar, 102 Ind. 396, 1 N.E. 728; Brown v. Campbell, 110 Cal. 644, 43 P. 12; McLean v. Baldwin, 136 Cal. 565, 69 P. 259; Boston & C. Smelting Co. v. Reed, 23 Colo. 523, 48 P. 515.
Stipulation of facts waives the necessity of pleading them. Evans v. Woodsworth, 213 Ill. 404, 72 N.E. 1082; First Nat. Bank v. Williams, 126 Ind. 423, 26 N.E. 75; Reilly v. Bader, 50 Minn. 199, 52 N.W. 522; Warder v. Baldwin, 51 Wis. 450, 8 N.W. 257; Eikenberry v. Edwards, 67 Iowa 14, 24 N.W. 570; Independent Dist. v. Merchants' Nat. Bank, 68 Iowa 343, 27 N.W. 255; Delphi v. Startzman, 104 Ind. 343, 3 N.E. 937; Parliman v. Young, 2 Dak. 175, 4 N.W. 139, 711; Fahey v. Esterley Mach. Co. 3 N.D. 220, 44 Am. St. Rep. 554, 55 N.W. 580; Morris v. Ewing, 8 N.D. 99, 76 N.W. 1047.
The facts that brought about this litigation were stipulated in the court below. Briefly stated they are as follows: The Rock Island Plow Company is a foreign corporation engaged in the manufacture and sale of plows and other farm implements. Prior to the commencement of this action, they had sold to Lorge & Knorr, local dealers of Minot, North Dakota, machinery to the value of $ 1,000, upon a contract that reserved the title to said property in the vendors until payment had been made in full upon the purchase price. This contract was not filed with the register of deeds until October 27, 1905. On October 23, 1905, the Western Implement Company secured possession of said goods, and all of the same, from said Lorge & Knorr, and were in possession on October 28, 1905, when this action was commenced. The Rock Island Plow Company, this plaintiff, brought this action in claim and delivery, regularly, and the sheriff of Ward county took possession of the goods and delivered them to the plaintiff. The defendant immediately rebonded, and the property was returned to it by the sheriff. On October 31, 1905, Lorge & Knorr filed a voluntary petition in bankruptcy. Their trustee claimed the goods from the defendant, and recovered their possession in a suit in the United States court. In said suit the plaintiff was not represented, and its claim to said goods was never brought to the attention of the United States court. Later this plaintiff demanded his property of the trustee and of the referee in bankruptcy, but his demand was refused. It was further stipulated that plaintiff is entitled to judgment against the defendant in the sum of $ 1,075, unless the foregoing facts in themselves furnish a sufficient defense.
The trial court adopted the stipulated facts, and filed his conclusions of law to the effect that the defendant was liable, and judgment was entered accordingly. The case was then appealed to this court. It must not be forgotten that the plaintiff, in its complaint, has alleged that it was entitled to the immediate possession of the goods in suit upon October 28, 1905; that the said property was unlawfully detained from them by the defendant, and was valued at $ 1,000. If it supports those allegations, it is entitled to the relief demanded, to wit, the return of the property, or its value if delivery is impossible, and for damages caused by its detention.
The first question arises upon the ownership of the goods. It will be remembered that the contract reserving title in plaintiff was not filed until October 27, 1907. Defendant insists that the said reservation of title is void under § 6181 of the Revised Codes of 1905, which provides that such reservations shall be void as to subsequent creditors without notice, and purchasers and encumbrancers in good faith and for value, unless the contract containing the reservation is in writing, and filed and indexed the same as a mortgage. However, the stipulated facts do not show the defendant to be entitled to make this claim. It was not a subsequent purchaser without notice, nor a purchaser or encumbrancer in good faith for value. The stipulation merely recites that the defendant upon October 23, 1905, obtained possession of the goods from Lorge & Knorr. As against them the contract of reservation was good. See Thompson v. Armstrong, 11 N.D. 198, 91 N.W. 39. Plaintiff had proven his title and was entitled to recover. The defendant further claims that when the plaintiff demanded the property from the referee in bankruptcy, he submitted the question of ownership to said referee, and is now bound by his decision. This claim is so clearly wrong that it hardly deserves consideration. In the first place the refusal of the referee to return the goods comes a long way from being an adjudication of the Federal courts, besides it is well settled that the Federal courts will not interfere with the state courts in their lawful possession of property in replevin actions. See Re L. Rudnick & Co. 88 C.C.A. 85, 160 F. 903, and cases cited.
In the case just cited the United States circuit court of appeals uses this language: ...
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