Sorenson v. Howell

Decision Date21 December 1925
Docket Number1209
Citation34 Wyo. 119,241 P. 1068
PartiesSORENSON v. HOWELL, Sheriff et al. [*]
CourtWyoming Supreme Court

APPEAL from District Court, Weston County; VOLNEY J. TIDBALL, Judge.

Action by Lou Sorenson against Charles A. Howell, Sheriff of Weston County and others. Judgment for defendants and plaintiff appeals.

Affirmed.

Thomas M. Fagan and Camplin & Camplin for appellant.

The fact that one owes another does not warrant the taking of debtor's goods and the closing of his business; Wellington vs. Spencer, 132 P. 675; Smith vs Hilton, 41 So. 747; defendants were trespassers; Drake on Attachment, Sec. 185b; Lyman vs. Holmes, 92 A 829; a valid writ of attachment was requisite; Cheesman vs. Fenton, 13 Wyo. 449; Drake 185b; Hagar vs Hass, 71 P. 822; a joint answer precludes separate rights; Reithman vs. Godman, 46 P. 685; defendants failed to prove that Sorenson was indebted to plaintiff bank at the time of attachment; Simpson vs. Voss (Kans.), 1 P. 601; Huey vs. Brimmer (Kans.), 58 P. 485; Bartless vs. Cheesebrough (Nebr.), 49 N.W. 360; Sears vs. Lydon (Idaho), 49 P. 122; notification of ownership by a third person after levy is sufficient; Cole vs. Edwards (Nebr.), 72 N.W. 1045; Reithman vs. Godsman (Colo.), 46 P. 684; plaintiff's testimony as to her possession and title was clear, and the findings against her were contrary to law; Smith vs. McCraine, 82 S.E. 307; Hagar vs. Haas, 71 P. 822; value of the goods were fixed at $ 3209.60 by inventory and appraisement which governs; Green vs. McCracken (Kan.), 67 P. 857; Roberts vs. Burr (Calif), 67 P. 46; the attachment bound the property from time of service; 3164 C. S.; a second attachment, even if valid, was no defense to a former invalid attachment; Geller vs. Rosenfield, 123 N.Y.S. 628; Drake on Attachment, Sec. 185c; Fairbanks vs. Kent (Calif), 62 P. 707; neither attachment authorized a levy upon property of a third person; Bank vs. Co., 44 S.E. 816; Epps & Mattos vs. Hazelwood, 89 S.W. 809; Walker vs. Wonderlick, 33 Nebr. 504; a writ issued without giving the required undertaking is contrary to law; 6119, 6122 C. S.; Simpson vs. Voss, supra; Drake 185; a clerk is without authority to insert a return date, contrary to statute; 6122 C. S.; Geiser vs. Guggenheim, 21 S.E. 475; and cases cited; attachment being ancillary to the main action it cannot exist beyond final judgment; Kaylor vs. Co., 87 S.E. 551; Marten vs. Bank, 135 P. 885; an amendment changing the defense is prohibited by statute, 5707 C. S.; Lellman vs. Mills, 15 Wyo. 166; Riordan vs. Horton, 16 Wyo. 369; and cases cited; a defendant pleading jointly is not entitled to a separate defense; Deitsch vs. Wiggins, 1 Colo. 299; Reithman vs. Godsman, supra; the plea of estoppel is insufficient; Hallock vs. Bresnahen, 3 Wyo. 73; 8 Enc. Pl. & Pr. 9, 10; Carstensen vs. Brown, 26 Wyo. 364; and cases cited; defendants were trespassers; Kirby vs. Union P. (Colo.), 119 P. 1050; and liable for damages; Drake (5th ed.) 196; estoppel will not support an invalid writ; Stephens vs. Head, 35 So. 565; Weatherington vs. Smith, 109 N.W. 381; Cheesman vs. Fenton, 13 Wyo. 449; trespassers cannot question the title of others; Simpson vs. Voss, supra; plaintiff was not a party to either the writ or the suit and the issuance of attachment was without jurisdiction; Cook vs. Higgins, 71 P. 269; Carstensen vs. Brown, 26 Wyo. 364; estoppel was not established; 21 C. J. 1226; 10 R. C. L. 699; the following authorities are presented in support of specifications of error numbers 1 to 40, inclusive; 4974, 6117-22, 5707 C. S., 6 C. J. 493, 503, 417; 21 C. J. 1140; Williams vs. U. P. Ry., 20 Wyo. 402; Riordan vs. Horton, 16 Wyo. 369; Cheesman vs. Fenton, 13 Wyo. 448.

E. C. Raymond for respondent.

The action was for conversion and required plaintiff to recover upon the strength of her own title; Union Stock Yard Co. vs. Mallory & Zimmerman, 48 Amer. St. Rep. 341, 28 Cyc. 2048; in this plaintiff failed; she testified that the property belonged to her husband; the proof indicated that the business was conducted in the name of Niobrara Motor Company, and that it carried an account at the Osage State Bank. Mrs. Sorenson never claimed any interest in the property until after the goods had been attached; the testimony shows conclusively that Carl Sorenson proved himself by word of mouth and printed matter to be the owner of the business; the trial court so found, and there is sufficient proof to support the findings, which under the rule, will not be disturbed, even if there be conflicting evidence. Amendments to pleadings during the trial are discretionary, and in the absence of abuse of discretion will not be interferred with; 5707, 5860 and 5861 C. S., C., B. & Q. vs. Pollock, 16 Wyo. 321; the money was borrowed by Carl Sorenson on the credit of Niobrara County Motor Company and appellant admitted that it should be paid.

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

This is an action brought in the district court of Weston County for damages for the alleged wrongful seizure of personal property of the plaintiff, Lou Sorenson, under a writ of attachment issued in an action brought in said court by the First National Bank of Newcastle, Wyoming, against "Carl Sorenson, doing business as Niobrara Motor Company." The sheriff of said county, Charles A. Howell, the surety upon his official bond, the U.S. Fidelity and Guaranty Company, and the plaintiff bank in said attachment suit, were made defendants. Upon a trial of the cause to the court without a jury, there was a judgment for defendants and each of them upon a general finding in their favor. The cause is here upon direct appeal, a procedure authorized by statute for bringing a cause to this court for review independent of a proceeding in error.

There is included in the specifications of error a statement that the court erred in failing to comply with the plaintiff's request for a separate statement of conclusions of fact and law. But that matter does not seem to be discussed in appellant's brief and must therefore, under our rules, be deemed to have been waived. But the request for such a statement does not appear to have been made except in a brief submitted to the trial court upon its request of both parties that briefs be filed, which would probably be insufficient as a request for separate statement in writing of the conclusions of fact and law. See First National Bank v. Citizens' State Bank, 11 Wyo. 32, 70 P. 726, 100 Am. St. Rep. 925.

Some contentions are made in appellant's brief relating to the attachment procedure which we think will be unnecessary to consider. Plaintiff was not a party, by her individual name at least, to the attachment suit, and if by reason of her relationship to the business of Carl Sorenson, then her husband, or the trade name above mentioned, she might be supposed to have had some interest in that suit, it sufficiently appears, we think, that all disputed questions relating to the attachment procedure were disposed of in the attachment suit, which finally resulted in a judgment for the bank, the plaintiff therein, against the defendant Sorenson, sued as doing business as aforesaid, and an order for the sale of the attached property. And it appears also that such sale was had and the property thereby disposed of. The case was before this court on appeal and the judgment was here affirmed. Bank v. Sorenson, 30 Wyo. 136, 217 P. 948. If the plaintiff was the owner, as she alleges in this action, and as such entitled to the possession of the attached property, as against any claim of the sheriff or the attachment creditor under the writ, then any alleged or supposed defects in the attachment proceedings would be immaterial.

The attached property consisted of a stock of automobile accessories and supplies, located at Osage, in Weston County, comprising the stock of merchandise of the business conducted at that place in the name of Niobrara Motor Company, which was established some time in April, 1920, by moving or shipping from Lusk, Wyoming, in Niobrara County, a part of the stock of a business conducted there in the same trade name. The plaintiff claims to have purchased that business at Lusk and its entire stock with her own money and in her own name in May, 1919, together with said trade name, from a Mr. Rogers and Mr. Boyd, who had previously owned and conducted the business under the same name. Mr. Rogers was a witness in this action, and testified that he was vice-president of the First National Bank at Lusk, had previously been engaged in the garage business and automobile supplies there, under the name of the Niobrara Motor Company, and that he sold the same with the trade name, building and stock to the plaintiff, who made the initial payment of ten thousand dollars by her own check, which was introduced in evidence and is in the record here. Further, he testified that the transaction took place at Lusk and that the approximate total value of the accessories and supplies on hand at that time was $ 12,000. Also that he knew that some of such supplies and accessories had been moved away by the plaintiff at some time in the next year, which would be 1920; that he knew also that it included some of the material that he had sold her; that he knew that Mrs. Sorenson was the owner after the business was sold to her; that he took a mortgage from her, which was signed by her, and that he conveyed the real property by deed to her.

That evidence is not disputed. And there is nothing to show any actual transfer of her interest in said business or the property thereof to anyone up to the time of the levy of the writ of attachment aforesaid, except by sales from time to time in the usual course of business. It appears,...

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2 cases
  • State v. Boner
    • United States
    • Wyoming Supreme Court
    • May 21, 1930
    ... ... v ... Lampman, 18 Wyo. 106; Pearce et al. v. Holm, 23 ... Wyo. 417; Watts v. Lawrence, 26 Wyo. 367; Wood ... v. Stevenson, 30 Wyo. 171; Sorenson v. Howell, ... 34 Wyo. 119. Points not raised in the specifications of error ... cannot be argued in the brief. McGinnis v. Beatty, ... 27 Wyo ... ...
  • Bird v. State
    • United States
    • Wyoming Supreme Court
    • December 21, 1925
    ... ... Exceptions and dismiss proceedings in error ... Motion ... Overruled ... David ... J. Howell, Attorney General, John C. Pickett, Asst. Attorney ... General for the motion ... Defendant's ... motion for a new trial was overruled ... ...

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