Watts v. Boynton

• Decision Date: 20 September 1929
• Docket Number: No. 6895.,6895.
• Citation: 226 N.W. 765,55 S.D. 569
• Parties: WATTS v. BOYNTON.
• Court: South Dakota Supreme Court

55 S.D. 569

226 N.W. 765

WATTS

v.BOYNTON.

No. 6895.

Supreme Court of South Dakota.

Sept. 20, 1929.

Appeal from Circuit Court, Clark County; W. N. Skinner, Judge.

Action by Edna M. Watts against I. T. Boynton. Judgment for plaintiff, and defendant appeals. Affirmed.Hans Hanson, of Vienna, for appellant.

L. C. Van Ornum, of Conde, for respondent.

BROWN, J.

In March, 1927, a horse about 18 years old and of the value of about $15, belonging to plaintiff, strayed away and was taken up by defendant while trespassing on defendant's premises. Defendant notified plaintiff of having taken him up, and the plaintiff demanded the return of the horse from defendant's wife, but did not make a personal demand upon defendant. About a year later plaintiff made demand on defendant for the horse, and on refusal of defendant to give him up plaintiff commenced an action in justice court to recover possession of the horse. From a judgment in her favor the defendant appealed to the circuit court, which found that defendant was not entitled to any damages because he had not brought action within three months from the time of the trespass, and that plaintiff was entitled to the possession of the horse or the sum of $15, the value thereof, in case a delivery could not be had, and from a judgment in accordance with the decision defendant appeals.

In Burnett v. Myers, 42 S. D. 233, 173 N. W. 730, we held that the provisions of chapter 244 of the Laws of 1907 provided the only remedy in this state for trespass by domestic animals, that such remedy was exclusive of any other, and this decision was followed in Belau v. Buss, 48 S. D. 595, 205 N. W. 669. The provisions of chapter 244 of the Laws of 1907 are carried into the Revised Code of 1919 as sections 2921-2928, inclusive. Appellant concedes that he could maintain no action for damages because not brought within the three months' limitation provided in section 2921 as amended by chapter 405 of the Laws of 1921, but he contends that section 2924, providing that the person suffering injury as mentioned in section 2921 may retain the offending animal until the damages and costs are paid or until good and sufficient security be given therefor, gives an independent remedy, and insists that the three months' limitation does not apply to, or limit, his right to retain possession of the trespassing animal. He takes the position that if the damages are not paid or security given, he may retain possession of the trespassing animal, at least until the statute of limitations governing the foreclosure of a chattel mortgage has run. Appellant says that his contention is borne out by the language of the various sections relating to the trespass of animals; that section 2921 reads, “except as in this chapter otherwise provided,” the person sustaining damage by a...