Thex v. Shreve, 1427

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtKIMBALL, Justice.
Citation267 P. 92,38 Wyo. 285
Docket Number1427
Decision Date08 May 1928
PartiesTHEX v. SHREVE, ET AL. [*]

267 P. 92

38 Wyo. 285

THEX
v.
SHREVE, ET AL. [*]

No. 1427

Supreme Court of Wyoming

May 8, 1928


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

Action by Charles H. Thex against Ralph J. Shreve and another. Judgment for plaintiff, and defendants appeal.

Judgment Affirmed.

H. Glenn Kinsley and R. E. McNally, for appellants.

The court erred in receiving in evidence the pretended mortgage, the assignment and affidavit of renewal, which were not properly authenticated as required by paragraph 906 U.S. R. S.; 3 Wigmore 1679; Wilcox v. Bergman, (Minn.) 104 N.W. 955; 5 L.R.A. (N.S.) 975; Company v. Gordon, (Mont.) 95 P. 995; 3 Jones Evidence, par. 538; Ensley v. Hollingsworth, 170 Ala. 386. The findings with respect to the mortgage were erroneous and unsupported; there was no evidence that the mortgage was in effect, 8279 Mont. Stats.; Rosenbaum v. Ryan, (Mont.) 84 P. 1120; Bank v. Beley, (Mont.) 80 P. 256; or that it was entitled to record, 8276 Mont. Stats.; there was no foundation for the reception of the renewal affidavit; findings with respect to the solvency of Shreve were outside the issue, 15 R. C. L. 604; Fein v. Davis, 2 Wyo. 118; 33 C. J. 1139; the judgment must conform to the pleadings, 37 C. J. 1172; Kingsbury v. Christy, (Ariz.) 192 P. 1114. Plaintiff waived his lien against the mortgaged property by consenting to the sale, 11 C. J. 624; 5 R. C. L. 459; Maier v. Freeman, (Calif.) 44 P. 357; Carr v. Brawley, (Okla.) 125 P. 1131, 43 L.R.A. (N.S.) 305; the sale evidenced the lien, Smith v. Bank, (Ia.) 61 N.W. 378; Bank v. West, 46 Me. 15. Consent to sale may be given by parol, 43 L.R.A. (N.S.) note 306; Cone v. Ivinson, 4 Wyo. 203; Bank v. Cavanaugh, (Okla.) 224 P. 525; Machine Co. v. Calhoun, (S. D.) 159 N.W. 127; Swords v. Elevator Co., (Mont.) 232 P. 189; Peoples v. Whitworth, (Idaho) 238 P. 306. Chattel mortgages expire in Montana two years and sixty days from the filing thereof, 8279 Rev. Code Mont., Section 8280 Mont. Code provides for renewal. There was no mortgage lien in Montana nor Wyoming; there was no competent evidence that the mortgage was ever filed, assigned or renewed, Cope v. Co., (Mont.) 49 P. 387; Reynolds v. Fitzpatrick, (Mont.) 57 P. 452; the court erred in its conclusion of law as to the notice and knowledge of Lacy and Shreve, with respect to the mortgage and proceeds therefrom; in Montana a chattel mortgage creates a lien only, Demers v. Graham, (Mont.) 93 P. 268, 14 L.R.A. (N.S.) 431; Bennett Bros. Co. v. Tam, (Mont.) 62 P. 780. Lacy did not claim to be an innocent purchaser and had a right to levy on the property as a creditor. The court erred in finding that Lacy resided in Big Horn County, Montana; a finding in favor of defendant will not support a judgment against him, Reak v. Borsi, (Calif.) 202 P. 951; Gaffey v. Co., (Nebr.) 98 N.W. 826, 33 C. J. 1171; Powell v. Holman, (Ark.) 6 S.W. 505; Bank v. Welsh, 165 F. 813; Co. v. Rapp, 157 F. 732; Munday v. Vail, 34 N. L. L. 418. The proceeds from the sale were not impressed with a trust, Smith v. Bank, (Ia.) 61 N.W. 378; Bank v. Luman, (Wyo.) 38 P. 678, 42 P. 874, 43 P. 514. The trial court erred in overruling defendants' motion for non-suit, 38 Cyc. 15650; 5897 C. S.; R. R. Co. v. Co., (Wyo.) 206 P. 143; Dimuria v. Co., (Wash.) 97 P. 657; Dayton v. Fenno, (Ore.) 195 P. 154. Even if a valid chattel mortgage had been established in Montana, plaintiff waived objection and ratified the sale; plaintiff is bound by the findings of the trial court, which should be reversed.

Lonabaugh & Lonabaugh, for respondent.

General objections to the reception of mortgage, assignment and renewals are not grounds for reversal, 2 R. C. L. 91; Urquhart v. Cass, 110 P. 1001; Willis v. Knanth, 137 N.E. 557; Sterler v. Bush, 195 N.W. 360; Wigmore, Vol. 3, § 1630; the objection of no foundation goes no further than accounting for the original, Boswell v. Bank, 16 Wyo. 161; Burquist v. Company, 18 Wyo. 253. The amended instrument is admissible although the original is not, Bank v. Bank, 278 F. 178; Goodfriend v. U.S., 294 F. 148; Gaumer v. Pub. Co., 119 N.E. 728. The question of authentication was not raised until several months after the trial; Shreve admitted execution of the mortgage, and Lacy had knowledge of it; the objections are without merit, Curtis v. Co., 277 F. 909. In the case of Wilcox v. Bergam, cited by appellants, 5 L.R.A. (N.S.) 938, the objection to authentication was specific. The copies were admissible in Montana, 8284 Mont. Stats., and therefore admissible in Wyoming as against general objections; objections to them should be specific, Doorak v. More, (Nebr.) 41 N.W. 777; Horn v. Bayard, (La.) 11 Rob. 259; Wonderly v. County, (Mo.) 45 L.R.A. 386. Documents may be proved by secondary evidence, 2 Wigmore 1218. The question of authentication is first raised upon appeal and authorities cited, whereas objections were that no foundation had been laid; presumptions are available as evidence, Norwood v. Green, 5 Mart. 175; Hines v. May, 230 S.W. 924; 3 Wigmore, § 2168. General assignments of error are insufficient to present questions as to admission of evidence, McFetridge v. State, 231 P. 409; C. & N.W. R. Co. v. Ott, 33 Wyo. 209; in determining rights of third persons, the instrument itself and the conduct of the parties must be looked to, irrespective of the intention of mortgagor or mortgagee, Stevens v. Curran, 72 P. 753; 6 R. C. L. 225. The mortgage stipulated that the lien attached to proceeds from the mortgaged property, Fairweather v. Nelson, (Minn.) 79 N.W. 506. The Michigan court has sustained a similar mortgage, Fuller v. R. R. Co., 43 N.W. 1085; the mortgagee should be protected against attaching creditors, Bank v. Luman, (Wyo.) 43 P. 514; Bank v. Farwell, 58 F. 633; Murray v. Pinkett, 12 Clark and F. 764; Bank v. King, 57 Pa. St. 202. Plaintiff's position is sustained by the case of Shotwell v. Bank, (S. D.) 147 N.W. 288. A garnisheeing creditor acquires no greater right than the judgment debtor had against him, had he sought to recover, Hoyt v. Clemans, L. R.A. 1915C, p. 170. The rule of comity is recognized between states, Studebaker Co. v. Mau, 13 Wyo. 358, 14 Wyo. 68; Young v. Bank, 14 Wyo. 81. The rule of comity is the rule of reciprocity, Union Securties v. Adams, 236 P. 513; Knox v. Gerhauser, 3 Mont. 267; Shevrier v. Roberts, 6 Mont. 319. The motion for non-suit is properly overruled, Sayles v. Wilson, 31 Wyo. 55; in all cases the decision must be upon the merits, 5858, 5879; Hall Oil Co. v. Barquin, (Wyo.) 237 P. 255.

H. Glenn Kinsley and R. E. McNally, in reply.

The objection made to the admission of the mortgage, assignment and alleged renewal copies, was specific and proper, 2 R. C. L. 67; there was no proof that any of the instruments had ever been executed, filed or recorded in Montana; the sale was had on October 17, 1925; Lacy and Thex were there; the decision of the trial court was evidently based upon the dictum of Judge Grosbeck in the Luman case; Lacy did not have notice or knowledge to place him upon inquiry as to the source of the funds.

KIMBALL, Justice. BLUME, Ch. J., and RINER, J., concur.

OPINION

[38 Wyo. 289] [267 P. 93]

KIMBALL, Justice.

The parties to this action are residents of Montana and the chattel mortgages herein mentioned are Montana mortgages of property in that state. In the year 1923, defendants Ralph J. Shreve and wife gave to the Bank of Ashland of Ashland, Montana, a chattel mortgage of 822 head [38 Wyo. 290] of cattle branded HI bar or S bar U to secure the payment of promissory notes for some $ 56000. The notes and mortgage were afterwards transferred by the Bank of Ashland to the plaintiff, Charles H. Thex, who still holds the notes and has kept the mortgage in effect by renewal as required by the laws of Montana. The amount of this indebtedness has at all times been much in excess of the amount involved in this action. Defendant Ralph J. Shreve was indebted also to defendant Frank Lacy on a note amounting in 1925 to more than $ 11000. This note was secured by a chattel mortgage on cattle branded BF bar. On October 17, 1925, the mortgagor, at a public sale at his ranch near Decker, Montana, sold some of the mortgaged cattle-possibly all that then survived in his possession. Both Thex and Lacy, the mortgagees, were present at the sale. We may assume that both gave at least implied consent to the sale. Thex bought some of the cattle covered by his mortgage, and credited the amount of his bid therefor on the mortgage indebtedness. It was understood between Shreve and Lacy that Shreve would collect the money for the BF bar cattle and turn it over to Lacy's attorney, Mr. Kinsley of Sheridan, Wyoming, who had in his possession for collection the $ 11000 note. It was understood between Shreve and Thex that Shreve would collect the money for the HI bar and S bar U cattle, except for those bought by Thex, and send it to the Bank of Ashland for Thex and for credit on the mortgage indebtedness. The sale had been arranged by Shreve, and was conducted by an auctioneer from Sheridan, Wyoming. The auctioneer, not Shreve, collected the money from the purchasers at the sale, and deposited it in the First National Bank of Sheridan, to the credit of Shreve. There were two deposits, the first of $ 5450.55 made October 22, 1925, and the other of $ 1504 made November 2, 1925. The total amount $ 6954.55, was made up of $ 700, received for BF bar cattle mortgaged to Lacy, $ 6031.05 received for HI bar and S bar U cattle mortgaged to Thex, and $ 223.50 received for hogs not covered by [38 Wyo. 291] either mortgage. Before the deposit of these sales receipts, Shreve had to his credit in the bank $ 4.45.

Shreve was notified of the deposits and at once, on November 2, out of the moneys so deposited, paid to Mr. Kinsley for Lacy the $ 700 received for the BF bar cattle on which Lacy held a mortgage. He did not forward to Thex the...

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11 practice notes
  • Jackson v. Hansard, 1751
    • United States
    • United States State Supreme Court of Wyoming
    • January 4, 1933
    ...Stebbins v. Duncan, et al., 27 L.Ed. 641-46; Gustin v. Jose, (Wash.) 39 P. 687; Reynolds v. Morton, 22 Wyo. 174-84; Thex v. Shreve, 38 Wyo. 285-92. Other errors assigned are not waived. The court erred in setting aside the verdict and rendering judgment for defendant. The cause should be re......
  • Mitchell Irr. Dirstrict v. Whiting, Com'r, 2257
    • United States
    • United States State Supreme Court of Wyoming
    • April 27, 1943
    ...this suit. All the evidence on the trial of the cause below has been brought here by the record before us. In the case of Thex v. Shreve, 38 Wyo. 285, 267 P. 92, this court following its prior decisions said: "The trial judge, on request therefor, made separate findings of his conclusi......
  • Delfelder v. Poston, 1611
    • United States
    • United States State Supreme Court of Wyoming
    • November 10, 1930
    ...that the judgment is not sustained by sufficient evidence and is contrary to law. As pointed out in the case of Thex v. Shreve, et al., 38 Wyo. 285, 267 P. 92, 95. "In such a case the review here must be upon the whole record, which takes the place of the particular findings, and an er......
  • First Security Bank of Pocatello v. Zaring Farm & Livestock Co., 5765
    • United States
    • United States State Supreme Court of Idaho
    • April 1, 1932
    ...by appellant, as in favor of respondents's position, relying upon McIntyre v. Hauser, supra, as sustaining authority. Thex v. Shreve, 38 Wyo. 285, 267 P. 92, 95, analyzes Carr v. Brawley, supra, and other authorities cited by appellant, arriving at the same result we do. The paragraph from ......
  • Request a trial to view additional results
11 cases
  • Jackson v. Hansard, 1751
    • United States
    • United States State Supreme Court of Wyoming
    • January 4, 1933
    ...Stebbins v. Duncan, et al., 27 L.Ed. 641-46; Gustin v. Jose, (Wash.) 39 P. 687; Reynolds v. Morton, 22 Wyo. 174-84; Thex v. Shreve, 38 Wyo. 285-92. Other errors assigned are not waived. The court erred in setting aside the verdict and rendering judgment for defendant. The cause should be re......
  • Mitchell Irr. Dirstrict v. Whiting, Com'r, 2257
    • United States
    • United States State Supreme Court of Wyoming
    • April 27, 1943
    ...this suit. All the evidence on the trial of the cause below has been brought here by the record before us. In the case of Thex v. Shreve, 38 Wyo. 285, 267 P. 92, this court following its prior decisions said: "The trial judge, on request therefor, made separate findings of his conclusi......
  • Delfelder v. Poston, 1611
    • United States
    • United States State Supreme Court of Wyoming
    • November 10, 1930
    ...that the judgment is not sustained by sufficient evidence and is contrary to law. As pointed out in the case of Thex v. Shreve, et al., 38 Wyo. 285, 267 P. 92, 95. "In such a case the review here must be upon the whole record, which takes the place of the particular findings, and an er......
  • First Security Bank of Pocatello v. Zaring Farm & Livestock Co., 5765
    • United States
    • United States State Supreme Court of Idaho
    • April 1, 1932
    ...by appellant, as in favor of respondents's position, relying upon McIntyre v. Hauser, supra, as sustaining authority. Thex v. Shreve, 38 Wyo. 285, 267 P. 92, 95, analyzes Carr v. Brawley, supra, and other authorities cited by appellant, arriving at the same result we do. The paragraph from ......
  • Request a trial to view additional results

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