Thomas v. First Nat. Bank of Tecumseh
| Decision Date | 16 January 1912 |
| Docket Number | Case Number: 1448 |
| Citation | 32 Okla. 115,1912 OK 113,121 P. 272 |
| Parties | THOMAS et al. v. FIRST NAT. BANK OF TECUMSEH. |
| Court | Oklahoma Supreme Court |
¶0 1. REPLEVIN--Dismissal--Rights of Defendant. Under section 5695, Comp. Laws 1909, where a plaintiff in replevin, who has taken property into his possession under the writ, fails to prosecute his suit to final judgment, by causing or suffering a dismissal thereof, the defendant has the right, upon application to the court, to have his right of property and right of possession inquired into and determined by the court, notwithstanding such dismissal; and in such proceeding, should the right of property and of possession be determined in favor of defendant, he is entitled to judgment for the return of the property, if a return can be had, and, if not, then for its value, together with his damages for the wrongful detention of the property.
2. SAME--Damages--Use of Property--Reasonable Value. One of the exceptions to the general rule as to the measure of damage for the wrongful taking and conversion of personal property is where the property so taken has a distinct "usable value"; and horses, broken and trained to do work, would have, under ordinary circumstances, such "usable value," and where such property has been wrongfully taken by one, and detained from another, such other has the right to recover as damages the reasonable value of the use of such property during the period of its wrongful detention; and this value is ordinarily to be determined by the ordinary market price of the use of such property at the place of taking during the period of the detention.
Error from Pottawatomie County Court; E. D. Reasor, Judge.
Action by the First National Bank of Tecumseh against Alsie Thomas and J. S. White. After dismissal by plaintiff, motion by defendants for judgment overruled, and defendants bring error. Reversed and remanded.
A. M. Baldwin, for plaintiffs in error.
Roscoe C. Arrington, for defendant in error.
¶1 This is a suit in replevin for the recovery of certain personal property. It was commenced on the 24th day of November, 1908, in the county court of Pottawatomie county, by the First National Bank of Tecumseh, plaintiff, and defendant in error herein, against Alsie Thomas and J. S. White, defendants, and plaintiffs in error herein, by filing a petition, affidavit, and bond in replevin in the usual form. Under the affidavit and writ of replevin there were taken from the defendants two mules, two horses, one wagon and harness, and a quantity of seed cotton, which property was delivered into the possession of the plaintiff bank. On December 17, 1908, the defendants below filed their motion to make plaintiff's petition more definite and certain, and on February 18, 1909, this motion was sustained, and the plaintiff below was given five days to amend its petition. The bank did not amend its petition within the five days, or at any other time; but on the 26th day of November, 1909, the plaintiff bank appeared in court and dismissed the cause. On the 27th day of November, 1909, the defendants below filed a motion for judgment for the return of the property, or its value, and for damages for its detention for 313 days, at the rate of $ 1.50 per day. On the 29th day of November, 1909, this motion was heard by the court and was overruled. It seems that the court heard evidence on the motion, as introduced by both of the parties; but from the record of the case it is difficult, if not impossible, to determine upon what grounds the court based its judgment in overruling the motion. The judgment of the court on this motion, together with the facts found, are, so far as needed here, as follows (Record, pp. 47-8):
¶2 The motion filed by the defendants below, after the dismissal of the cause, is, in so far as we need cite same, as follows:
"Comes now the above-named defendants, Alsie Thomas and J. S. White, and move the court to render judgment in favor of said defendants, and against said plaintiff, in the above-styled cause, for the return of the above-styled property, to wit (property described as in replevin affidavit), or, in case the same cannot be returned, for the value thereof, in the sum of $ 475, together with damages for the usable value of the said property for a period of 313 days at the rate of $ 1.50 per day, and for the cost of this action for the following reasons."
¶3 The motion then sets out the various proceedings had in the cause, mentioning the petition, affidavit, and bond for replevin, the writ, and the taking of the property thereunder, and its delivery to plaintiff, and finally the dismissal of the cause by plaintiff.
¶4 The defendants below were attempting to proceed under section 5695, Comp. Laws 1909, which is as follows:
"If the property has been delivered to the plaintiff, and judgment rendered against him, on demurrer, or if he otherwise fail to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, proceed to inquire into the right of property, and right of possession of the defendant to the property taken."
¶5 A question of practice under section 5695, Comp. Laws 1909, is presented. This statute was adopted from Kansas and is section 184 of the Kansas Code (Gen. St. 1909, sec. 5777). It does not seem to have had the direct consideration of this court, or the Supreme Court of Oklahoma Territory, its predecessor. Therefore we should look to the construction placed on it by the Supreme Court of Kansas.
¶6 In the case of Higbee v. McMillan, 18 Kan. 133, the rule of procedure under this same statute seems to have been laid down by Chief Justice Horton of that court. In that case Higbee took under a writ of replevin thirteen yearling mules which ...
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