White Automobile Co. v. Hamilton

• Decision Date: 10 June 1924
• Docket Number: 1092
• Citation: 226 P. 687,31 Wyo. 390
• Parties: WHITE AUTOMOBILE CO. v. HAMILTON
• Court: Wyoming Supreme Court

226 P. 687

31 Wyo. 390

WHITE AUTOMOBILE CO. v. HAMILTON

No. 1092

Supreme Court of Wyoming

June 10, 1924

APPEAL from District Court, Fremont County; CYRUS O. BROWN, Judge.

Action by the White Automobile Company against Ed. Hamilton and Ed Conners. There was judgment for plaintiff and defendants appeal. See also 29 Wyo. 109, 210 P. 958.

Affirmed.

M. C Burk and George H. Paul for Appellant.

The trial court was without authority to change or modify the record of its judgment, 23 Cyc. 868; a judgment for the surrender of securities cannot be changed to one for money damages, 23 Cyc. 869; in this case the judgment record was amended without notice, which was error, O'Brien v O'Brien, 124 Cal. 422, 57 P. 225; Byrne v. Hoag, 116 Cal. 1, 47 P. 775; Bank v. Ducey, 110 Cal. 69, 42 P. 476. Amendments after judgment are confined to formal defects in pleadings or other proceedings, 53 Cyc. 873-876; a judgment once entered must be corrected if erroneous by proper proceedings, Id., all parties affected must be made parties to the application, 23 Cyc. 878; exhibits must be introduced in evidence, Thornborough v. R. Co., 14 Ind. 499, 2nd Wigmore Ev. 1185; Bank v. Bowen, 43 S.W. 483; chattel mortgages must recite that they are given for security, 4683 C. S. 1920, 71 Ark. 505; 65 L. R. A. 353; a redelivery bond in replevin extends only to such judgments as may be rendered for possession of property sued for, Cobbey Rep. 2nd Ed. 1321; liability of surety cannot be enlarged, Id., Vineyard v. Barnes, 124 Ill. 346; Jackson v. Hopkins, 92 Va. 601; Hall v. Tillman, 103 N.C. 276.

F. A. Michels and G. J. Christie for Respondent.

The judgment was not amended; questions urged by appellant constitute a collateral attack, 15 R. C. L. 838, 23 Cyc. 1062; Holt v. Cheyenne, (Wyo.) 137 P. 876; only void judgments may be attacked collaterally, 15 R. C. L. 835, 23 Cyc. 1055; Burke v. Ass'n., 25 Mont. 315; Haupt v. Simington, 27 Mont. 480; Morrill v. Morrill, 20 Ore. 96; the amendment was made to conform with the findings and was permissable, 34 Cyc. 1542; it was agreed by counsel at the trial that the court should take judicial notice of the replevin bond, which was set out in the petition, and is a part of the record on appeal herein, and thus placed in evidence.

M. C. Burk and George H. Paul in Reply.

A court is without power to enter a judgment in excess of its jurisdiction, 15 Ency. Pro. 415; 15 R. C. L. 853; nor under guise of amendment enter a different judgment, 15 Ency. Pro. 113; amendments are confined to clerical errors, 15 Ency. Pro. 112, 15 R. C. L. 673. The judgment here was materially altered as to the interest of the plaintiff; value of property and amount of money judgment, additional evidence was necessary to support said amendment, void judgments may be attacked on appeal for the first time, 21 A. L. R. 414, a judgment by default or by confession of the principal does not bind the surety, 21 R. C. L. 1091; U. S. v. Rundle, 107 F. 227; the original judgment against the principal was by default; the amended judgment was entered without notice, and is therefore void.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action on a re-delivery bond brought in the district court of Fremont County by the White Automobile Company, a Corporation, as plaintiff, against Ed. Hamilton and Ed. Conners, as defendants. Judgment was rendered in favor of the plaintiff for the sum of $ 2324.46 and costs, and the defendants appeal. The facts leading up to the judgment aforesaid are substantially as follows:

One Lewis M. Clark gave to the above named plaintiff a chattel mortgage on one White two-ton truck to secure the sum of $ 1833.42, and providing that in case of default in any of the terms of the mortgage, the mortgagee might take possession of the property. The mortgage was acknowledged March 12th, 1920 and filed of record in Fremont County, Wyoming, on April 30, 1920. On May 15, 1920, said plaintiff corporation commenced an action of replevin in the district court of Fremont County against said Lewis M. Clark to recover possession of said property, or for judgment or $ 2042.18 with interest, alleging that default had occurred in the terms of the said mortgage, and that defendant refused, upon demand, to turn the truck over to plaintiff. The property described in said mortgage was evidently taken into possession of the sheriff under a writ of replevin issued in said action, but a re-delivery bond was given by said Lewis M. Clark, with Ed. Conners and Ed. Hamilton, defendants in the present case, as sureties. The condition of the bond is as follows, to-wit:

"The condition of the above obligation is such that if the defendant shall safely keep the property replevined so that the same shall not in any way be injured or damaged, and if he will deliver the same to the plaintiff, if judgment shall be rendered to that effect, and if he shall pay to the plaintiff all such sums of money as the plaintiff may recover in the action, and if the defendant shall pay all damages and costs, if judgment be rendered to that effect, then this obligation shall be void, otherwise in full force and effect."

It does not appear whether the defendant Lewis M. Clark made any defense in said action of replevin. In any event, on December 27, 1920, a judgment was rendered in said cause in favor of said plaintiff. It recites that all of the allegations of plaintiff's petition are true; that the value of the property mentioned in plaintiff's petition is $ 2600; and that Ed. Conners and Ed. Hamilton are sureties on the re-delivery bond given in said action. It closes as follows:

"Now, therefore, on motion of plaintiff's attorneys, it is ordered and adjudged that the plaintiff do have and recover of defendant and his said sureties, the possession of the property described in plaintiff's petition, to-wit: (here describing the property), together with $ 6.80 costs, and in case a delivery of said property cannot be had, then and in that case, plaintiff do have and recover of defendant and his said sureties, the sum of $ 2600, the value of said property, together with costs in the sum of $ 6.80."

Thereafter, on February 10, 1921, an amended judgment was entered in said cause. It recites that the said cause came on for hearing in open court on February 10, 1921, one of the days of the regular November, 1920 term of said court; that plaintiff applied for the modification and amendment of said judgment of December 27, 1920, and that the court has heard the evidence and is advised in the premises. It closes as follows:

"It is hereby ordered that said judgment be, and the same is hereby, modified and amended so as to read as follows, to-wit: 'That all the allegations of plaintiff's amended petition are true; that the value of the property mentioned in plaintiff's petition was on the 15th day of May, 1920, $ 2600; that on the said 15th day of May, 1920, plaintiff had a special interest in said property amounting to $ 2042.18, and was on said date entitled to the possession of said property, to-wit: (here describing the property) for the purpose of foreclosing his lien thereon, and that defendant wrongfully withheld possession of said truck from plaintiff, and that the value of said property on the 27th day of December, 1920 was not to exceed $ 200; Now, therefore, on motion of plaintiff's attorney it is hereby ordered and adjudged that plaintiff do have and recover judgment against the defendant in the sum of $ 2042.18, with interest thereon from the 15th day of May, 1920, together with costs, taxed at $ 6.80, making a total judgment of $ 2144.25.'"

Thereupon, on February 24, 1921, the said plaintiff herein commenced this action against said defendants Ed. Hamilton and Ed. Conners for the purpose of recovering from said defendants the amount of $ 2144.25, together with interest, in accordance with the terms of the re-delivery bond given by said defendants as hereinbefore mentioned. A demurrer to the petition was sustained, and an amended petition was filed on May 27, 1921. Said defendants Ed. Conners and Ed. Hamilton filed an answer in said cause on July 2, 1921, and to the affirmative allegations in the answer plaintiff filed a reply on September 1, 1921. The cause came on for hearing on September 1st, 1921, and judgment was entered for the plaintiff for the amount prayed for.

1. The defendant pleaded and sought to prove that soon after the 27th day of December, 1920, the date when the first judgment in the replevin action was rendered, the plaintiff corporation took possession of the truck above mentioned through its agent, Ralph Allen, and that at that time the said truck was in good condition and of the value of $ 2600, or more than the amount due the plaintiff. This evidence was introduced, no doubt, to show payment to plaintiff in full of the original indebtedness owing to it by Lewis M. Clark, as well as the indebtedness evidenced by the amended judgment in the replevin action. The trial court found against defendants on this issue. The agent, Ralph Allen, above referred to, was a witness in the case, and denied any such delivery to plaintiff. There was substantial testimony to sustain the said holding of the trial court, and hence under the repeated decisions of this court, we cannot disturb its finding.

2. The answer to the amended petition herein was filed on July 2nd 1921. No reply having been filed, defendant on September 1, 1921, the date on which the trial was commenced, filed a motion for judgment on the pleadings, claiming that the allegations in the answer constituted a complete defense. The motion was apparently overruled and a reply filed. At the beginning of the trial counsel for defendant objected...