Wantz v. Redfield, 4066

• Decision Date: 09 June 1958
• Docket Number: No. 4066,4066
• Citation: 74 Nev. 196,326 P.2d 413
• Parties: Emery WANTZ, Appellant, v. L. V. REDFIELD, Respondent.
• Court: Nevada Supreme Court

Page 413

326 P.2d 413

74 Nev. 196

Emery WANTZ, Appellant, v. L. V. REDFIELD, Respondent.

No. 4066.

Supreme Court of Nevada.

June 9, 1958.

Stewart, Horton & Campbell, Reno, for appellant.

Peter Echeverria, Reno, for respondent.

MERRILL, Justice.

This is an action for conversion brought by the appellant as plaintiff. From judgment for the defendant this appeal is taken. The question involved is whether the assertion of a third-party claim against property held under attachment and the accepting of possession of such property can be held to constitute conversion when it is subsequently determined that the claimant was not the owner.

An action was brought by appellant as plaintiff against certain affiliated Reno construction corporations and property was attached and taken into possession by the sheriff of Washoe county. Respondent then filed a third-party claim asserting that he was the owner of the property attached. Pursuant to the provisions of NRS 31.070, the appellant having failed to post bond for continued possession of the sheriff, the property was delivered to respondent as third-party claimant. Under provisions of the same statute, appellant, as plaintiff, filed a motion to determine title to the property. Hearing was had and it was judicially determined that the respondent was not the owner but that the defendants were the owners. Judgment was then rendered in favor of appellant and against the defendants in the principal action.

It does not appear that any attempt was ever made to levy execution against the property involved in order to satisfy judgment, although the property was still available within the county. Instead this action was brought by appellant as plaintiff. Appellant in this action contends that respondent, through wrongful assertion of a third-party claim, coupled with his having accepted possession of the property so wrongfully claimed, had been guilty of converting the property to his own use and was liable to appellant for the reasonable value of the property converted to the extent necessary to satisfy his judgment in the former action. Judgment below was rendered in favor of defendant upon the ground that the facts did not constitute a case of conversion. This was not error.

A conversion is defined as a distinct act of dominion wrongfully exerted over another's personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights. 53 Am.Jur. 819. 'Moreover, an act, to be a conversion, must be essentially tortious; a conversion imports an unlawful act, or an act which cannot be justified or excused in law.' Ibid. at page 820.

In this case the assertion of the third-party claim was but resort to the judicial process for determination of a title in dispute. In the absence of malice, which the record here does not reveal, it is not wrongful or tortious to engage in a dispute as to title nor to submit that dispute to the courts. Courts exist for the purpose of resolving disputes....