Schleiff v. McDonald

• Decision Date: 05 July 1923
• Citation: 216 P. 1044,37 Idaho 423
• Parties: H. SCHLEIFF, Appellant, v. C. R. MCDONALD, Doing Business as INTERMOUNTAIN GARAGE, W. L. RICE and JOSEPH A. DEMAI, Respondents
• Court: Idaho Supreme Court

216 P. 1044

37 Idaho 423

H. SCHLEIFF, Appellant, v. C. R. MCDONALD, Doing Business as INTERMOUNTAIN GARAGE, W. L. RICE and JOSEPH A. DEMAI, Respondents

Supreme Court of Idaho

July 5, 1923

NONSUIT-GROUNDS OF MOTION-REVERSIBLE ERROR-EVIDENCE-SCOPE OF REVIEW ON APPEAL.

1. A motion for judgment of nonsuit must specify the ground relied upon.

2. A judgment of dismissal or nonsuit will be reversed where plaintiff has made a prima facie case.

3. On motion for a judgment of dismissal or nonsuit at the conclusion of plaintiff's case the defendant must be deemed to have admitted all facts of which there is any evidence and all facts which the evidence tends to prove and the evidence will be interpreted most strongly against the defendant.

4. On appeal from a judgment an assignment of error which does not affect the judgment will not be reviewed.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Action in claim and delivery to recover an automobile. From a judgment dismissing plaintiff's complaint, plaintiff appeals. Reversed.

Reversed and remanded, with costs to appellant.

William Edens, for Appellant.

By making the motion for nonsuit the "defendant admits the existence of every fact which tends to prove or which can be gathered from any reasonable view of the evidence." (Later v. Haywood, 12 Idaho 78, 85 P. 494; Stricker v. Hillis, 17 Idaho 646, 106 P. 1128; Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am St. 161, 94 P. 432, 15 L. R. A., N. S., 254.)

H. W Lockhart and Budge & Merrill, for Respondents, cite no authorities on points decided.

TERRELL District Judge. McCarthy, Dunn, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

TERRELL, District Judge.

--The appellant filed suit in the court below in claim and delivery seeking to recover a certain automobile of the alleged value of $ 350, claiming to be the owner and entitled to the possession of the same and otherwise containing the usual allegations pertaining to such an action.

The defendants McDonald and DeMai do not appear in the action. The defendant Rice appears and answers, admitting that he holds possession of said automobile, that he claims some right, title or interest in it; that he refuses to give possession to plaintiff, and denies all other allegations of the complaint.

The defendant Rice for further answer and as an affirmative defense alleges that if said plaintiff had any right, claim or interest in or to the said automobile it was by virtue of a mortgage, and for further answer and as a further affirmative defense the defendant Rice alleges that on February 18, 1919, he tendered to plaintiff $ 215, claimed to be owing by one DeMai to appellant; and that appellant refused said tender.

The cause came on regularly for trial before a jury. At the conclusion of the appellant's case the respondent Rice moved for a judgment of nonsuit or dismissal of plaintiff's complaint upon the ground that it appeared from plaintiff's exhibits "A" and "B," the same being a bill of sale from DeMai to the appellant and an agreement on the same day by appellant to sell the automobile in question to DeMai that any interest that appellant might have therein would be as a mortgagee, and that appellant could not maintain an action in claim and delivery. Said motion was by the court granted and thereafter a judgment of dismissal of appellant's action as to the defendant Rice was duly entered. From this judgment plaintiff appeals.

Appellant makes the following assignments of error:

1. That the court erred in granting the motion for nonsuit and entering judgment of dismissal, for the reason that plaintiff established ownership and right of possession of said automobile in question by competent evidence, and that the evidence of plaintiff was undisputed and further established that defendant Rice had no right, title or interest in and to said automobile.

2. The court erred in refusing to enter a default against DeMai and McDonald, they having made no appearance in said action.

The evidence in the case is brief. Appellant in presenting proof of ownership of the automobile in question offered a bill of sale in evidence without objection which reads as follows:

"This instrument witnesseth, that Joseph A. DeMai for and in consideration of the sum of $ 190, the receipt whereof is hereby acknowledged, had this day, and does hereby bargain, sell, transfer, and convey unto H. Schleiff, the following property to-wit:

"One automobile, touring type, five passenger Reo make, 1916 model, six cylinder engine complete, with all the tools and apparatuses attached to or in the said automobile. Said automobile car No. 187.

"Said DeMai warrants, covenants and guarantees that said automobile is free, clear and wholly unincumbered, and that he will forever warrant and defend the title thereto against the lawful claims of all persons whomsoever.

"Dated at Pocatello, Idaho, on this 8th day of Jany., 1919.

"(Signed) JOSEPH A. DEMAI."

"Witness:

The appellant in pleading in his complaint the cause of the alleged wrongful detention of said automobile alleged that the respondents claimed to have some right, title or interest in and to said car by virtue of a certain option contract. This contract was offered in evidence as appellant's exhibit "B" without objection and reads as follows:

"This instrument witnesseth, that for and in consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, H. Schleiff hereby agrees, warrants, guarantees and undertakes to sell, transfer and convey unto Joseph A. DeMai, the property hereinafter described, on the terms hereinafter set out. Said property being described as: (Description identical with description in bill of sale.)

"Said Schleiff agrees, warrants, covenants and undertakes to sell, and convey said property to said DeMai for the sum of $ 215 cash in hand, provided that the said DeMai shall exercise the right of and elect to purchase hereunder on or before the expiration of thirty days from this date.

"If said DeMai shall fail to make said purchase then all rights under this instrument shall cease, be terminated, and this instrument shall become and be null and void, and of no force and effect.

"At the time of the sale and conveyance, if the same shall be made, said Schleiff warrants, agrees, and undertakes to execute a bill of sale to said DeMai for said property containing covenants and warranties against incumbrances.

"Said Schleiff agrees, warrants and undertakes with said DeMai not to sell, transfer or in any manner incumber said property within said period.

"Witness our hands on this 8th day of Jany., 1919.

"(Signed) H. SCHLEIFF.

"JOSEPH A. DEMAI."

The evidence shows that at the time the appellant received the bill of sale of said car he received possession of the same and continued for a number of weeks thereafter to retain possession of it until it was placed in the garage of the defendant McDonald for repairs and it was at this garage at the time of the institution of the suit.

The testimony further shows demand by the plaintiff for the possession of the car and the refusal to deliver, and in fact admittedly makes out a prima facie case in favor of appellant, unless the contention of counsel for the respondent Rice is well taken in which he contends that the two instruments herein set out construed together constitute a mortgage from the respondent DeMai to the appellant, and that appellant's interest in the said automobile being that of mortgagee he cannot maintain an action in claim and delivery. There is no oral proof in...