Sherman v. Clark

• Decision Date: 11 August 1877
• Citation: 24 Minn. 37
• Parties: GEORGE R. SHERMAN <I>vs.</I> GEORGE M. CLARK.
• Court: Minnesota Supreme Court

24 Minn. 37

GEORGE R. SHERMAN vs. GEORGE M. CLARK.

Supreme Court of Minnesota.

August 11, 1877.

This was an action of claim and delivery brought in the district court for Dodge county to recover possession of a pair of horses, a set of harness, a wagon, a set of double sleighs, and other personal property, taken by the defendant, under a chattel mortgage, and detained in Olmsted county. The complaint was filed in March, 1875. By stipulation of the parties the cause was referred to a referee to report the evidence to the district court for Dodge county, with the further stipulation that either party might bring the cause on for hearing and trial before the said court, upon ten days' notice after the said report had been filed. The defendant subsequently objected to the taking of any evidence before the referee, because the action was brought in the county of Dodge, while the property sought to be recovered was detained in the county of Olmsted. The evidence having been reported pursuant to the stipulation, and the cause having been brought on for trial, (the district court for Dodge county, Lord, J., presiding,) found in substance that the said chattels were mortgaged November 3, 1874, to secure a promissory note made and delivered at the same time by the plaintiff to one George B. Arnold, and payable one year from date; that the only proviso in said mortgage relating to the possession of the said property was the following: "But if default be made in such payment, or if the said George B. Arnold shall, at any time before the debt aforesaid becomes due, deem himself insecure, he, the said George B. Arnold, is hereby authorized to take possession of, and to sell at public sale, after giving the like notice of the time and place of such sale as is required by law for constables' sales, or at private sale, the personal property hereinbefore mentioned, or so much thereof as may be necessary to satisfy the said debt, interest, and reasonable expenses, and retain the same out of the proceeds of such sale; the overplus or residue, if any, to belong and be returned to the said G. R. Sherman;" that on January 19, 1875, the note and mortgage were purchased by and assigned to the defendant, who, although he did not then or thereafter deem himself insecure, took immediate and forcible possession of the mortgaged property, and refused to deliver the same to the plaintiff when demanded; that the value of said property at the time of the taking was three hundred dollars, and that the value of the use of said property during the time it had been detained was two hundred dollars, and that defendant had sold and disposed of said property, and that possession thereof could not be obtained. The court, therefore, further found, as conclusions of law, that defendant's taking and detention of the property was wrongful, and that plaintiff was entitled to recover possession of it; but that possession of the property could not be had, and that therefore plaintiff was entitled to recover its value, or three hundred dollars, and also to recover two hundred dollars damages for the taking and detention of the same. It was therefore ordered that judgment be entered for the plaintiff in the sum of five hundred dollars, and a motion for a new trial having been denied, the defendant appealed from the order denying that motion.

Jones & Gove, for appellant.

A. La Due and A. J. Edgerton, for respondent.

BERRY, J.

1. This was an action of claim and delivery brought in the district court for Dodge county, to recover personal property detained by the defendant in Olmsted county. As the property was situated in the latter county, the defendant was entitled to have the action tried there under Laws of 1876, c. 51. But he waived his right in this respect by stipulating that the case should go to a referee to take the evidence and report the same to the district court for Dodge county, before which either party might bring the case to hearing and trial upon ten days' notice.

2. The property in controversy was taken from the possession of the plaintiff upon a chattel mortgage, given by the plaintiff to George B. Arnold,...