Vantz v. Abbett, 84-6009

• Decision Date: 24 September 1986
• Docket Number: No. 84-6009,84-6009
• Parties: Ernie VANTZ, Appellant, v. Robert Arthur ABBETT, Respondent. ; CA A37392.
• Court: Oregon Court of Appeals

Page 941

725 P.2d 941

81 Or.App. 418

Ernie VANTZ, Appellant, v. Robert Arthur ABBETT, Respondent.

No. 84-6009; CA A37392.

Court of Appeals of Oregon.

Argued and Submitted April 11, 1986.

Decided Sept. 24, 1986.

Ivan Vesely, Portland, argued the cause and filed the brief, for appellant.

No appearance for respondent.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

Plaintiff brought this action to recover damages for assault. Defendant counterclaimed for conversion, alleging that plaintiff wrongfully took possession of his front-end loader. The case was tried to a jury, which, on May 16, 1985, returned a special verdict in favor of defendant on plaintiff's claim and defendant's counterclaim. However, the jury did not award any damages to defendant on his counterclaim. This appeal concerns the propriety of an "order of replevin," requiring plaintiff to return the loader to defendant, that was issued by the trial court after the verdict was returned but before judgment was entered. We vacate the order of replevin and remand for entry of an appropriate judgment.

The order of replevin was issued on July 3, 1985, nunc pro tunc June 25, 1985. Plaintiff failed to comply with the order. A bench warrant for his arrest was subsequently issued on September 17, 1985, when he failed to appear at a show cause hearing to explain why he should not be held in contempt of court for refusing to comply with the order. Judgment was thereafter entered on September 11, 1985, nunc pro tunc May 16, 1985. The judgment does not specify the relief (or lack thereof) awarded defendant.

On appeal, plaintiff contends that the replevin order was issued in contravention of his state constitutional right to a jury trial. We need not reach that constitutional issue; there is simply no legal basis to support the trial court's order. Defendant did not bring a claim and delivery action pursuant to ORCP 85, which would have enabled him to obtain possession of his alleged property. He chose, rather, to sue in conversion for the full value of the loader. He did not seek return of the implement until after the jury had found that he had not been damaged by the conversion. Because that finding has not been challenged, ¹ we need not decide whether defendant would be entitled to possession in lieu of money damages, had money damages been awarded. See ORCP 67 C; Kerschner v. Smith, 121 Or. 469, 474, 236 P. 272, 256 P. 195 (1927); but see ORCP 61 D Here, the jury's uncontested finding is that defendant was not damaged by the conversion. Although the order of replevin is not necessarily inconsistent with that finding, it is not the relief which defendant had sought in his counterclaim. Accordingly, the jury was not asked to decide whether defendant was entitled to possession. ² Defendant could not seek one remedy (damages) and then, when...