Southeast Securities Co. v. Christensen

• Decision Date: 25 April 1945
• Docket Number: 7232
• Citation: 66 Idaho 233,158 P.2d 315
• Parties: SOUTHEAST SECURITIES COMPANY, a corporation, Appellant, v. MARLIN E. CHRISTENSEN and JESS PALMER, Respondents
• Court: Idaho Supreme Court

158 P.2d 315

66 Idaho 233

SOUTHEAST SECURITIES COMPANY, a corporation, Appellant, v. MARLIN E. CHRISTENSEN and JESS PALMER, Respondents

No. 7232

Supreme Court of Idaho

April 25, 1945

1. Trial

A motion for nonsuit on grounds of insufficiency of the evidence must specify the particular in which the evidence is insufficient. (I.C.A., secs. 7-503, 7-705, subd. 5.)

2. Animals

In action for wrongful conversion of plaintiff's hogs defendant had burden of proving the pleaded defense that question of amount of damages to defendant's property caused by the hogs had been arbitrated and that the hogs were sold under statute to satisfy such damages. (I.C.A., secs 24-1801 to 24-1805.)

3. Trial

On defendant's motion for nonsuit after plaintiff had rested his case, defendant must be deemed to have admitted all the facts of which there is any evidence and all the facts which the evidence tended to prove. (I.C.A., secs. 7-503, 7-705 subd. 5.)

4. Evidence

The rule that the party who is seeking affirmative relief has the burden of proof is one which underlies all procedure.

5. Animals

The pendency of arbitration proceedings under statute to fix damages to defendant's property caused by plaintiff's hogs was not a bar to action against defendant for conversion of the hogs. (I.C.A., secs. 24-1801 to 24-1805.)

6. Animals

The findings, conclusions and report of one only of a board of arbitrators consisting of two or more members does not constitute an arbitration and is not a compliance with statute unless joined in by a majority of the board. (I.C.A sec. 24-1804.)

7. Corporations

That an individual owned and controlled plaintiff corporation did not render corporation illegal or affect corporation's right to maintain action for the recovery of its property against defendant wrongfully converting the same, even though recovery would inure to the benefit of the individual.

8. Animals

In action for wrongful conversion of plaintiff's hogs, where defendant set up affirmative defense that the hogs had damaged defendant's property and that they had been sold under statute to satisfy the damages as fixed by arbitrators, court erred in granting defendant's motion for nonsuit at the close of plaintiff's evidence, since defendant should have been required to prove the alleged defense. (I.C.A., secs. 7-503, 7-705, subd. 5; 24-1801 to 24-1805.)

Appeal from the District Court of the Fifth Judicial District, for Bannock County. Hon. C. J. Taylor, Judge.

Reversed and new trial granted.

F. E. Tydeman for appellant.

The defense of another action pending is a plea in abatement only. It is not a plea in bar, and if another suit was pending, it should act only to bar further proceedings in this action and not finally dispose of the same. (Tondre v. Garcia, 116 P.2d p. 584.)

"The plea of another action pending is dilatory and is not favored by the courts." (Bank of Am. v. Cohen, 69 P.2d 875, Notes, Ida.-Pac. Digest, vol. 30, p. 644.)

The motion fails to state wherein there is a lack of evidence, and is so general and indefinite that it is impossible to determine the grounds upon which it is made, and it cannot be determined what necessary proof it is claimed was omitted.

"A motion for non-suit upon the ground that plaintiff has shown by his own evidence that he has no right of recovery in the action was properly overruled." (Given v. Keeney, 7 Ida. 335.)

"Motion for non-suit stating that proof wholly fails to show any liability on the part of the defendants is too general for consideration." (Merrill v. Freemont, 39 Ida. 238; Magee v. Hargrove, 50 Ida. 442.)

A motion for non-suit must specifically set for the grounds relied upon. When insufficient evidence is relied upon, motion must specify where evidence is insufficient, and if it does not, should be denied. (Ida. Merc. Co. v. Kalanquin, 7 Ida. 295; Mole v. Payne, 39 Ida. 274; Carver v. Ketchum, 55 Ida. 595.)

P. C. O'Malley for respondents.

Ailshie, C.J. Budge, Givens, Holden, and Miller, JJ., concur.

OPINION

Ailshie, C.J.

This is an action for damages for wrongfully taking and converting to respondents' use nineteen hogs owned by appellant corporation.

In March, 1944, the hogs were kept "on the farm (appellant's,) at McCammon". After the tenant left the farm, Mrs. Bean, with the assistance of another woman, was taking care of the hogs. About March 24th, Mrs. Bean saw respondent, Christensen, nextdoor neighbor, who told her he had the hogs; that "they went through the fence into his field." The second time she went down, saw the hogs "and offered to pay for the feed and labor what he was out for taking care of them." She "refused to pay him six hundred dollars for damages" asked for by Mr. Christensen.

April first, a letter was addressed to Mrs. Bean by Attorney McDermott, informing her of damage caused respondent Christensen, through her negligence, and notifying her of pending damage suit for $ 555 caused by her "livestock to his ditches, hay and other property." An answer to this letter was written by Mr. Tydeman, as attorney for Mrs. Bean, April 5th, notifying McDermott of her attempt to secure a place for the hogs; that, if they caused any damage, "it will be necessary for us to take the statutory steps for arbitration." (Sec. 24-1804, I.C.A.) Thereafter arbitrators were selected by the parties and, April 24, '44, a statement signed by E. Grant Shumway, defendants' arbitrator, fixing the amount of damages, costs of feeding and caring for the animals, was served on Mr. Tydeman, in words as follows:

"We the undersigned, selected as the arbitrators between Marlin E. Christensen, and Nellie Bean, to fix damages caused by the hogs that is owned by Nellie Bean. that was running at large on the premises of Melvin E. Christensen, and which was taken up and penned by the said Marline E. Christensen in the Precinct of McCammon. Bannock County, Idaho, having viewed the premises of Marlin E. Christensen, and observed the hogs penned up by him and after consulting both parties to the controversy, find the following facts and fix the following amounts as the damage, and cost of feeding and careing for the said animals:

Dated Hogs were penned up by Christensen: March 24, 1944

No. of hogs confined 19 head at .50 per $ 9.50 penning up Damages;

We find these hogs have damaged Marlin E. Christensens hay crop to the extent that he has to harrow level and plant 1/3 or better of this 7 acre field.

loss of 1/3 or better of hay crop,

$ 62.50

seed for replanting,

13.00

Work to replant

20.00

Cost of feed. $ 2.00 a day, 26 days,

52.00

.50c per day

Labor for feeding and careing for said hogs.

$ 13.00

Dated this 19 day of April, 1944.

E. Grant Shumway

Arbitrator for Christensen

Residence McCammon, Idaho

E. Grant Shumway

Arbitrators Fees $ 5.00

Arbitrator for Mrs. Nellie Bean.

Residence McCammon, Idaho

Mrs. Bean was at Christensens farm but

did not consult us about this matter."

The total damages assessed by defendants' arbitrator amounted to $ 160.50. The arbitrator for Mrs. Bean (supposedly, L. A. Whiting of McCammon) did not sign the above statement or award. It is stated by appellant's counsel, and is apparent, that the arbitrators did not agree on the amount.

April 28, 1944, a complaint was filed in the Probate court by appellant, praying for trial of the cause, for entry of judgment, that defendant suffered no damage by reason of alleged trespass of hogs, and that they be returned to plaintiff. On the same day undertaking on appeal was filed with the clerk of the Probate court. September 18th defendants' answer was filed, alleging that the hogs had been taken up and impounded, under the provisions of sec. 24-1801 to 24-1805, inclusive; that they had been sold under legal procedure for trespass, about May 8, '44; that Mrs. Bean failed to claim the hogs or settle for damage or pay for their keep; that she failed to take any action on the award made by the arbitrators for more than five days thereafter; that defendant, pursuant to sec. 24-1805, I.C.A., had turned the hogs over to a deputy sheriff who levied upon and sold them April 26, '44. In the answer, defendants' attorney denied that plaintiff is a legal corporation with any right to file such action; that Mrs. Bean is "the President, Manager and sole owner of the said corporation, and sole owner of said hogs". The complete file from the Probate court was admitted on the trial in the District court but it was agreed that there had never been any hearing in the Probate court.

Complaint in the District court, filed April 28, 1944, by plaintiff, alleged "That on the 26th day of April, 1944, at McCammon, Idaho, the defendants unlawfully levied on and advertised the said hogs for sale at public auction and claimed that the said hogs belonged to the defendant Marlin E. Christensen", etc., and prayed for damages against defendants in the sum of $ 600. Demurrer to the complaint was filed May 5, 1944. The court's memorandum decision was filed June 22d, to the effect that the complaint be held sufficient; and the demurrer was overruled. A lengthy answer and affirmative defense was filed by defendants, praying for dismissal of the action. As to the sale, the answer alleges:

"after proper advertising as is provided for under Chapter 18, Title 24, I.C.A., and after more than 30 days had elapsed after the date of the posting of notices, and the title of said hogs has passed to Marlin E. Christensen, the said hogs were sold at public auction, to the highest bidder; that the said Nellie Bean President of said corporation plaintiff, had full knowledge of every step of the proceedings, and failed refused and neglected to pay the damage and keep of said hogs, and that they had to be sold to...