Tuttle v. Hardenberg

• Citation: 38 P. 1070,15 Mont. 219
• Parties: TUTTLE v. HARDENBERG et al.
• Decision Date: 21 January 1895
• Court: United States State Supreme Court of Montana

38 P. 1070

15 Mont. 219

TUTTLE v. HARDENBERG et al.

Supreme Court of Montana

January 21, 1895

Appeal from district court, Dawson county; George R. Milburn, Judge.

Action by H. C. Tuttle against P. R. L. Hardenberg and others. From a judgment for defendants, plaintiff appeals. Reversed.

Ella L Knowles, H. J. Haskell, and Thomas C. Holmes, for appellant.

Strevell & Porter, for respondents.

DE WITT, J. (after stating the facts).

We are of opinion that this complaint states a cause of action. The objections to this pleading, urged by respondents' counsel, are based upon their claim that Sheriff Tuttle had no right, under the law, to turn over the attached hay to his successor, Sheriff Gleason, but should have retained the possession himself. But whether that were the sheriff's duty or not, under our statutes (sections 857, 858, Div. 5 Comp. St.) we do not think is material to this case. As it appeared by final results, the seizure of the hay was wholly wrongful. In the action in which the attachment was issued judgment went for defendant; and, in the action by the third persons claiming the hay, judgment was for those claimants. They, viz. Mary Sears and Duncan Davidson, claimed the hay from Tuttle on September 28th. On October 8th defendants Mead and Smith gave Tuttle the indemnity bond. Tuttle then held and kept the hay, at least until December 17th, when his term of office expired. During all this time his holding was wrongful. He was holding Mary Sears' and Duncan Davidson's property by virtue of a writ of attachment against a person other than Sears and Davidson. Sears and Davidson were therefore then unlawfully deprived of their possession of the hay, and the same was converted by Tuttle. Judge Cooley says, in his work on Torts: "Any district act of dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it, is a conversion. "The action of trover being founded on a conjoint right of property and possession, any act of the defendant which negatives or is inconsistent with such right amounts, in law, to a conversion. It is not necessary to a conversion that there should be a manual taking of the thing in question by the defendant; it is not necessary to be shown that he has applied it to his own use. Does he exercise a dominion over it in exclusion or in defiance of the plaintiff's right? If he does, that is in law a conversion, be it for his own or another person's use."' Page 448. Therefore, Tuttle having fully converted the property prior to the expiration of his term of office, Sears and Davidson then had their cause of action against him. "It is commonly said that, to sustain trover, the plaintiff must show a legal title. He must have property, general or special, or actual possession, or the right to immediate possession, at the time of...