Schlessinger v. Cook

• Decision Date: 08 September 1900
• Citation: 9 Wyo. 256,62 P. 152
• Parties: SCHLESSINGER v. COOK
• Court: Wyoming Supreme Court

62 P. 152

9 Wyo. 256

SCHLESSINGER v. COOK

Supreme Court of Wyoming

September 8, 1900

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ERROR to the District Court, Weston County, HON. JOSEPH L. STOTTS, Judge.

The case and the material facts were stated by Mr. Justice Corn, who delivered the opinion as follows: --

The plaintiff in error, who was also the plaintiff below, brought suit in replevin against the defendant to recover possession of one thousand head of sheep and three hundred and seventy-five lambs, their increase for the spring of 1895. The plaintiff's petition sets out that he claims the property by virtue of the terms of a certain chattel mortgage executed and delivered by the defendant to one Reynolds as security for the payment of defendant's note for $ 1,750, said note and mortgage having been assigned by Reynolds to the plaintiff; that by the terms of the mortgage, if the note was not paid when due, the property should become absolute in the mortgagee or his assigns, and they were empowered to take immediate possession; that the note was due, and no part of it had been paid.

The defendant answered that the alleged chattel mortgage was executed at Orin Junction in this State; that by the transaction the defendant purchased from the mortgagee, Reynolds, the sheep in question, paid $ 900 for them in cattle, and executed the note and mortgage referred in plaintiff's petition; that, as a part of the same transaction, Reynolds agreed to deliver to defendant twenty bucks, for which defendant at the same time paid him $ 118, and that Reynolds has entirely failed to deliver them; that the mortgage was not executed in accordance with the laws of Wyoming, and was not filed at any place in Wyoming prior to the commencement of the action and the taking of possession of the sheep by plaintiff. The defendant in his answer then further alleges that the plaintiff, after obtaining possession of the 1,375 head of sheep and lambs, by the writ of replevin in this suit, wrongfully sold all of them, and removed a large portion of them out of the jurisdiction of the court, and has never accounted with the plaintiff for any part of them. That the value of the sheep was $ 2.65 per head, and of the lambs $ 1.00, making a total of $ 3,025. That the plaintiff is a non-resident of the State, and defendant, being a poor man, is unable to incur the expense necessary to obtain an accounting and compel payment from the plaintiff in another State. He then prays judgment against the plaintiff for the value of the property, $ 3,025, and interest; but in case the court should find that the plaintiff was equitably entitled to be paid the amount of his note and interest, that the amount of $ 118, with interest, be deducted therefrom. That after such deduction, the remainder of plaintiff's claim should be deducted from the sum of $ 3,025, and judgment rendered in favor of the defendant for the balance. But in case the court should find that the sum of $ 118 should not be deducted from the plaintiff's claim, that the amount of plaintiff's claim and interest be deducted from the alleged value of the sheep, and that judgment be rendered in favor of defendant for the balance. A jury was waived by the parties, and, upon a hearing, the court rendered the following judgment: --

The court being fully advised in the premises finds generally for the defendant, upon the merits; the court finds that the property in question was wrongfully taken and converted by the plaintiff (and plaintiff has removed a part of said property out of the State and the jurisdiction of this court, and sold the whole of said property, and appropriated the same to his own use;) that the defendant, at the time of the commencement of this action, was in the possession, and entitled to the possession of the said property described in plaintiff's petition, and had a right of property, and the right of possession thereto, said property being described as one thousand head of ewes and three hundred and seventy-five lambs; that at the time of such taking and conversion of said property, said ewes were of the value of $ 2.25 per head, making $ 2,250, and said lambs were of the value of $ 1.25 per head, making $ 468.75, and of a total value of $ 2,718.75; the court further finds that the defendant was indebted for the purchase price of said sheep in the sum of $ 1,750, and interest thereon, up to the time of the said taking in the sum of $ 199.30, making in all the sum of $ 1,949.30, which debt was assigned to plaintiff (which in equity the defendant ought to pay); the court finds that by reason of the wrongful taking, sale, and conversion of said property, the defendant has been damaged in the sum of $ 2,718.75 (from which sum should be deducted the aforesaid sum of $ 1,949.30, leaving a balance due the defendant in the sum of $ 769.45).

"It is therefore ordered, adjudged and decreed by the court that the defendant have and recover of said plaintiff, Henry Schlessinger, and of Meyer Frank, his surety in said action, the sum of $ 769.45, his said damages, and for his costs in this action, taxed at $ , and that execution issue."

The evidence is not before us, an attempted bill of exceptions having been stricken from the files by a former decision of this court.

Reversed.

Frank J. Kelley, for plaintiff in error, contended and argued that the gist of an action in replevin is the wrongful detention of specific personal property at the time of the commencement of the suit. Second: That the transfer of a negotiable, promissory note before due, and for a valuable consideration and without actual notice of any defense, passes the title to the said note and mortgage to the assignee thereof, free from any equities, if any there are, existing against it. And third: That the action of replevin does not allow an examination into counter claims of indebtedness, or set off, and does not allow a settlement of accounts between the parties; and that the question of where the mortgage was made, or whether it was acknowledged, or recorded, or filed, is an issue that cannot be raised by the mortgagor as a defense in replevin, and is material only as between subsequent claimants of the property mortgaged. And fourth: That in an action in replevin where a delivery bond is given by the plaintiff and the property delivered to him thereunder, the subsequent disposition of the property by him is immaterial, and cannot be inquired into on the trial. His bond takes the place of the property. In support of the foregoing the following authorities were cited: Kyger v. Riley, 2 Neb., 28; Carpenter v. Longan, 16 Wall., 371; Pierce v. Faunce, 47 Me. 507; Potts v. Blackwell, 4 Jones Eq., 58; Fisher v. Otis, 3 Chandler, 83; Reeves v. Sculley, Walk. Ch., 258; Herman on Ch. Mort., 630; Graham v. Blinn, 3 Wyo., 746; Jones Ch. Mort., 706; Cobbey on Replevin, 793, 791, 796-7, 825; Broakover v. Esterley, 12 Kan. 149; Gage v. Wayland, 67 Wis. 566; Huebner v. Koebke, 42 id., 319; Cline v. Libby, 46 id., 123; Frisbie v. Langworthy, 11 id., 375; Kingsland v. Chrisman, 26 Mo. App., 308; Christy v. Scott, 31 id., 331; Woodruff v. King, 47 Wis. 261; Rice v. Cribb, 12 id., 182; Crow v. Vance, 4 Ia., 440; Furbank v. Goodman, 5 N. H., 450; Bank v. Clement, 30 N. W., 57.

It was further contended that "A mortgage is good between the parties to it, although it does not conform to the requirements of the statute relating to acknowledgment, record, or the like." Winsor v. McLellan, 2 Story, 492; Sawyer v. Turpin, 91 U.S. 114; Stewart v. Platt, 101 id., 731; Hall v. Snowhill, 14 N. J. L.; Lemay v. Williams, 32 Ark. 116; Davis v. Ransom, 26 Ill. 100; Griffin v. Wertz, 2 Bradw., 487; Frank v. Miner, 50 Ill. 444; Beeman v. Lawton, 37 Me. 543; Hayman v. Jones, 7 Hun, 238; Wescott v. Gunn, 4 Duer, 107; Hudson v. Warner, 2 Har. and G., 415; Forest v. Tinkham, 29 Ill. 141; Porter v. Demont, 35 id., 478; Badger v. Batavia Manfg. Co., 70 id., 302; McTaggart v. Rose, 14 Ind. 230; Kilborne v. Fay, 29 O. St., 264; Wilson v. Leslie, 20 O., 161; Smith v. Moore, 11 N. H., 55; Williamson v. R. R. Co., 26 N. J. Eq., 308; Hackett v. Manlove, 14 Cal. 85; Clagett v. Salmon, 5 G. & J., 314; Johnson v. Jefferies, 30 Mo. 423; Machette v. Wanless, 2 Colo. 169.

Further, the record contains everything sufficient for a review of the errors complained of.

M. B Camplin and N. K. Griggs, for defendant in error, argued and contended that as the mortgage was not executed and recorded according to the requirements of the Wyoming statutes, therefore the plaintiff had no right to foreclose; and if he was without right to foreclose, he had no right to possession, and to recover in the replevin suit. That as the plaintiff was a wrong doer, and had disposed of the sheep mortgaged, and was not a resident of the State, the court will give to the defendant such relief as he is entitled to, and compel the plaintiff to account for the proceeds. That although the defendant might have an independent action, the court ought not to require him to go into a foreign jurisdiction for his remedy, under the circumstances of the case. The following authorities were cited. (Cobbey on Ch. Mort., 392; Bryant v. Vix, 83 Ill. 11; Petillion v. Noble, 73 id., 569; Olds v. Cummings, 31 id., 188; Oster v. Michley, 35 Minn. 245; Hostetter v. Alexander, 22 id., 559; Johnson v. Carpenter, 7 id., 186; Wygal v. Bigelow, 42 Kan. 477; Hungate v. Reynolds, 72 Ill. 425; Leach v. Kimball, 34 N. H., 568.) That the judgment should stand as to the surety on the replevin bond, at...