Smith v. Willoughby

• Court: North Dakota Supreme Court
• Writing for the Court: BRUCE, J.
• Citation: Smith v. Willoughby, 24 N.D. 1, 138 N.W. 7 (N.D. 1912)
• Decision Date: 31 October 1912
• Docket Number: 81912
• Parties: SMITH v. WILLOUGHBY

138 N.W. 7

24 N.D. 1

SMITH v. WILLOUGHBY

No. 81912

Supreme Court of North Dakota

October 31, 1912

Appeal by plaintiff from a judgment of the District Court for Foster County, Burke, J., in defendant's favor in an action to recover possession of certain property.

Reversed on condition.

Guy C H. Corliss, for appellant.

Plaintiff should have the right to return the property, and not be compelled to pay for it, and a judgment simply for the value of the property is in violation of his statutory rights. Singer Mfg. v. Dunham, 33 Neb. 686, 50 N.W. 1122; Manker v. Sine, 35 Neb. 746, 53 N.W. 734; Martin v. Foltz, 54 Neb. 162, 74 N.W. 418; Baxter v Berg, 88 Wis. 399, 60 N.W. 711; Fitzhugh v Wiman, 9 N.Y. 559; Hooker v. Hammill, 7 Neb 231; Lee v. Hastings, 93 Neb. 508, 14 N.W. 476; Dwight v. Enos, 9 N.Y. 470; Hall v. Jenness, 6 Kan. 356; Legere v. Stewart, 17 Colo.App. 472, 68 P. 1059; Smith v. Coolbaugh, 19 Wis. 106; McNamara v. Eisenleff, 14 Abb. Pr. N. S. 25; Kates v. Thomas, 14 Minn. 460, Gil. 343; Glann v. Younglove, 27 Barb. 480; Seaman v. Luce, 23 Barb. 248; Robbins v. Slattery, S.C. , 9 S.E. 510; Washburn v. Huntington, 78 Cal. 573, 21 P. 305; Etchepare v. Aguirre, 91 Cal. 288, 25 Am. St. Rep. 180, 27 P. 668; Hynes v. Barnes, 30 Mont. 25, 75 P. 523; French v. Ginsburg, 57 Minn. 264, 59 N.W. 189.

Replevin of this property by the wife and children is a complete answer to a claim by defendant that the same property should be returned to him also. Coen v. Watkins, 62 Mo.App. 502; Mohr v. Langan, 162 Mo. 474, 85 Am. St. Rep. 507, 63 S.W. 409; Brown v. Webster, 4 N.H. 500; Bath v. Miller, 53 Me. 316.

A verdict which does not in some way describe the property that defendant is entitled to the return of is defective, and no judgment can be rendered thereon. 34 Cyc. 1530; Guille v. Wong Fook, 13 Ore. 577, 11 P. 277; Ford v. Ford, 3 Wis. 399.

W. O. Lowden, for respondent.

The facts proven and shown by the abstract warrant the judgment entered in this action. Larson v. Hanson, 21 N.D. 411, 131 N.W. 231.

The testimony conclusively showing that the plaintiff had disposed of the property and two years thereafter having elapsed before the trial and it not appearing that they could be returned to like condition as when seized, the court rightfully entered the judgment.

Park v. Robinson, 15 S.D. 551, 91 N.W. 344; Claudius v. Aguirre, 89 Cal. 501, 26 P. 1077; Faulkner v. First Nat. Bank, 130 Cal. 258, 62 P. 463.

BRUCE, J. BURKE, J., did not participate, and the Hon. SAMUEL L. NUCHOLS, Judge of the Twelfth Judicial District, sat in his stead.

OPINION

Statement

BRUCE J.

The plaintiff and appellant, in a claim and delivery proceeding under the statute, seized certain personal property of the defendant upon which he claimed to hold certain chattel mortgages. The plaintiff filed a complaint in the action, setting up his alleged special interest under said chattel mortgages, describing the property to be seized, and demanding judgment for immediate possession. Defendant answered by pleading payment and certain other defenses, and in his turn prayed "for judgment against said plaintiff for the immediate return and possession of the property described in said complaint, or the sum of $ 5,000, the value thereof, in case a delivery cannot be had, and $ 1,000 damages for the detention thereof, and costs." The verdict was: "We, the jury, find that, at the time of the commencement of this action, the defendant was entitled to the possession of said property, and that its value was $ 1,878." On this verdict the trial court entered judgment "that the defendant have and be awarded, and the defendant is awarded, judgment against the plaintiff in the above-entitled action for the sum of $ 1,878, the same being the value of the property so taken by the plaintiff and not returned to the said defendant in the above-entitled action." From this judgment this appeal was taken. The evidence showed that after the seizure by the plaintiff and before the trial the said plaintiff had sold, at public auction, the machinery and twenty-one or twenty-two horses seized by him, and that twenty-one more of said horses had been replevied by the wife and children of the defendant, and that at the time of the seizure of such property by the plaintiff, they had belonged to such wife and children, though they were in the barn of the defendant. It also showed that after such sale, plaintiff settled with other parties for five more of the horses. Nearly all of the property sold at the public auction, however, was bid in by the plaintiff, himself.

BRUCE, J. (after stating the facts as above). Plaintiff and appellant contends as grounds for reversal of the judgment herein, (1) that under the provisions of our statute, §§ 7075 and 7036, Rev. Codes 1905, a plaintiff who has wrongfully taken property in claim and delivery proceedings has an absolute right to the judgment against him being in the alternative for the return of the property, or its value in case a return cannot be had, and that no such alternative was given in this case; (2) that the verdict nowhere describes the personal property for which the compensation is required to be made, but merely speaks of it as "said property;" (3) even if the words "said property" can be regarded as a description of the property described in the complaint, plaintiff and appellant contends that such verdict is unwarranted and unsustained by the evidence, as the testimony shows that at least twenty-one of the horses described in the complaint did not belong to the defendant at all, but to his wife and children, and were replevied by them, and, as far as the evidence discloses, are now in their possession.

There appears to be some doubt in the authorities as to whether, in an action between the original parties, and where the property which is put up at public auction or otherwise sold is conveyed to a third party, the judgment should be in the alternative. See Larson v. Hanson, 21 N.D. 411, 131 N.W. 229; Sherman v. Clark, 24 Minn. 37; Faulkner v. First Nat. Bank, 130 Cal. 258, 62 P. 463; Park v. Robinson, 15 S.D. 551, 91 N.W. 344; McNamara v. Eisenleff, 14 Abb. Pr. (n.s.) 25. There can be no doubt, however, that a judgment in the alternative should have been rendered in the case at bar. Although the plaintiff sold at public auction the horses and machinery which were not replevied from him, the proof is uncontradicted that he himself was the purchaser of by far the greater part thereof, and the presumption, in the absence of proof to the contrary of course, must be that he was in the possession thereof at the time of the trial. The statutes, §§ 7075 and 7036 of the Code of 1905, require a judgment to be in the alternative except when it is shown that a delivery cannot be had, and the proof in the case at bar falls very far short of showing such impossibility of delivery.

The general rule seems to be that "where several articles are embraced in an action of replevin, the judgment following the verdict should show the separate value of each article so that by the return of any one of more articles the judgment may be satisfied pro tanto." 18 Enc. Pl. & Pr 602. The rule, it is said, is for the purpose of enabling the court by its judgment to afford the party entitled to the property a complete remedy in case the property cannot be obtained on execution, and is also evidently for the purpose of enabling the wrongdoer to return what he can of the property and reduce the judgment pro tanto by a return of a portion thereof. This rule necessarily involves a finding by the jury of the value of each specific article. It is argued, indeed, that if there is no such finding and judgment, and a portion only is or can be returned, another lawsuit may be necessary in order to decide the value of, or the loss to the owner on account of the failure to return, the missing articles. It does not seem, however, that under our peculiar statute such specific valuation is necessary, except where it is demanded upon the trial, and the jury are instructed to ascertain the same. Sec. 7036 of the Revised Codes of 1905 provides, among other things, that, "3. In case they find against the plaintiff, and the property has been delivered to him, and the defendant in his answer claims a return of the property, they must find the value thereof, or of the defendant's interest therein if less than its full value at the time of the taking, and they must also assess the damages, if any are claimed in the answer, which the defendant has sustained by reason of the taking and detention of such property. . . . Whenever the jury are so instructed, they must find the value of specific portions of the property in controversy, or of the interest of either party therein if less than its full value at the time of the taking, and shall also assess the damages, if any are claimed by the party in whose favor they find sustained by reason of the taking and detention of such property." Section 7075 provides that "in an action to recover the possession of personal property, the judgment for the plaintiff may be for the possession or for the recovery of possession, or the value...