Tingley v. Smith
| Decision Date | 19 October 1937 |
| Docket Number | 27409. |
| Citation | 72 P.2d 729,181 Okla. 84,1937 OK 599 |
| Parties | TINGLEY et al. v. SMITH et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Although the gist of the action of replevin is the right of plaintiff to immediate possession of the property at the commencement of the action, if the rights of the parties change pendente lite, the judgment should adjust the equities as they stand at the rendition of the judgment.
2. Where the mortgagee institutes a replevin action for the purpose of foreclosing his mortgage, and obtains possession thereof at the commencement of the action because of having filed a replevin bond, and then sells the property at foreclosure sale prior to the determination of the issues in the replevin action, the same constitutes conversion, for which the defendant may obtain damages against the plaintiff by way of cross petition in the same action, or may obtain a set-off against the mortgage debt to the extent of the reasonable market value of the property, if the market value is less than the debt.
3. The sureties on a replevin bond filed under section 784 O.S.1931, 12 Okl.St.Ann. § 1573, assume three separate undertakings: (1) That the plaintiff shall duly prosecute the action, (2) that plaintiff will pay all costs and damages which may be awarded against him, and (3) that if the property be delivered to him he will return it to the defendant if a return be adjudged. Where plaintiff converts the property while the suit is pending, it is not a condition precedent to defendant's recovery of damages or offset therefor that he claim a return, and defendant's judgment for damages in such case is binding upon the sureties under the second undertaking stated above.
4. The sureties on a replevin bond undertake that they will see that the principal performs the judgment, and they are bound by the judgment against the principal arising out of the same transaction, except in cases involving lack of jurisdiction.
Appeal from Court of Common Pleas, Tulsa County; Grady S. Cornett Judge.
Action on a replevin bond by H. C. Smith and another against C. F Tingley and another, sureties. Judgment for plaintiffs, and defendants appeal.
Affirmed.
Paul P Pinkerton, of Sand Springs, for plaintiffs in error.
Kleinschmidt & Johnson, of Tulsa, for defendants in error.
This appeal is by sureties to reverse the judgment of the trial court entered against them on a replevin bond.
As is usual in such a case, there were two lawsuits involved; the first one being the replevin action itself, and the second being the present action, on the bond filed by the former plaintiff when he instituted the replevin action.
Fred Gantz was the mortgagee of certain personal property owned by H. C. Smith and Glen Smith. Alleging default in the mortgage, by reason of which he was entitled to possession of the mortgaged property for the purpose of foreclosing the mortgage, he filed in the district court his replevin action. Prior to the date on which the defendants were required to answer, he foreclosed the mortgage by posting notices, conducting the mortgage sale and purchasing the property himself. The defendants thereafter filed their answer wherein they denied that there had been any default of the provisions in the mortgage, and that therefore the plaintiff was not entitled to the possession thereof for the purpose of foreclosing the mortgage, and in the same pleading by way of cross petition they asked damages against the plaintiff for certain tortious acts of his, including conversion of the property, said conversion consisting of the sale thereof prior to determination of the issues in the replevin action. When the case came on for trial the defendants dismissed their claims for damages against the plaintiff on all issues alleged in their answer except the aforesaid conversion, and had those issues docketed separately, so that the case was tried on the theory that if the defendants were entitled to any damages against the plaintiff it was solely by reason of his aforesaid conversion of the property.
The trial court sustained a demurrer to the plaintiff's evidence in that action, and submitted to the jury the question of the extent of the damages suffered by defendants by reason of plaintiff's conversion of the property. The jury found that the reasonable market value of the property exceeded the amount of the mortgage indebtedness of the defendants to plaintiff, and returned a verdict for the defendants in the amount of said excess. The trial judge entered judgment on the verdicts and that judgment became final. Thus, the plaintiff failed to prevail in his replevin action, and the defendants recovered judgment for damages against him for his conversion of the replevined property pendente lite.
The defendants in the foregoing action then filed this action against the sureties on the replevin bond which had been posted by plaintiff upon the commencement of the former action, the judgment not having been paid. Thus the defendants in the first action are the plaintiffs in this action, and the sureties on plaintiff's replevin bond in the first action are the defendants in this action.
Eight separately numbered propositions are contained in the brief of plaintiffs in error, but they are largely interrelated and may be combined for purposes of discussion. Several of these propositions, in their last analysis, are predicated upon the assumption that, if the defendants in the replevin action (present plaintiffs) were indebted to the mortgagee upon the date the replevin action was filed, the mortgagee was entitled to the possession of the property as a matter of law, and that therefore no judgment could be validly entered against the sureties on the replevin bond, since the gist of the action was the right to possession at the commencement of the action. And replying thereto in their briefs defendants in error say that this assumption is incorrect.
It is self evident that the right of the plaintiff in the replevin action to the possession of the property, by reason of any alleged default in the mortgage, is an issue which was determined and foreclosed in that action. Only the pleadings in that action, and certain statements of counsel therein are before us in the present record. Those pleadings reveal that the defendants therein, who are plaintiffs in this action, denied that there was any default in the mortgage. But even assuming that there was a default in the mortgage on the date the replevin action was filed, nevertheless in view of the general denial subsequently filed therein the defendants were entitled to a judicial determination of that question, in that action. Whether there was a default in the mortgage could not be judicially determined until the trial of the case on its merits. The defendants in that action may have produced evidence that the mortgage was not in default, in which case the plaintiff's attempted replevin of the property would have failed. But before the defendants had filed any answer in that action the plaintiff posted notices of sale, and sold the property under the mortgage. This was conversion. In Salisbury v. First Nat. Bank of Taloga, 99 Okl. 138, 221 P. 444, in a similar case, we held that: ...
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