Whittler v. Sharp

• Decision Date: 21 August 1913
• Docket Number: 2478
• Court: Utah Supreme Court
• Parties: WHITTLER v. SHARP, SHERIFF

135 P. 112

43 Utah 419

WHITTLER v. SHARP, SHERIFF

No. 2478

Supreme Court of Utah

August 21, 1913

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by J. F. Whittler, against Joseph C. Sharp, Sheriff of Salt Lake County.

Judgment for plaintiff. Defendant appeals.

REVERSED AND REMANDED.

Dey Hoppaugh & Fabian for appellant.

C. G Gatrell for respondent.

STRAUP J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

In the complaint it is alleged the plaintiff held a recorded chattel mortgage in the sum of $ 850 on an automobile of the value of $ 1000, the property of his son, the mortgagor; that the defendant, the sheriff of Salt Lake County, on a writ of attachment in an action against the son, "seized, took, levied upon, and carried away said automobile and did not then or at any time pay or tender to the plaintiff, or deposit with the county recorder of Salt Lake County, the amount of the mortgage debt or any part thereof," though past due and wholly unpaid; that at the time of the levy the plaintiff notified the sheriff "that said automobile was subject to such chattel mortgage and demanded payment of said mortgage indebtedness upon such seizure, and thereafter in writing demanded from the defendant the payment of such mortgage indebtedness; but the defendant has refused and still refuses to make such payment, by reason of which the plaintiff has been damaged in the sum of $ 850," for which amount, together with interest and costs, judgment was demanded.

In his answer the defendant admitted the levy and seizure of the automobile on the writ of attachment, denied the plaintiff at that time notified him of the chattel mortgage, averred he then had no knowledge of the mortgage and that shortly thereafter, upon receiving written notice from the plaintiff and learning of the existence of the mortgage, he released the levy and, with the knowledge and consent of the plaintiff, returned the automobile to the place from which it was taken and in the same condition as when it was levied on. Neither the mortgage nor the validity or regularity of the attachment proceedings was disputed or questioned.

The case was tried to the court, who found that at the time of the levy the automobile was not in the possession of the plaintiff; that it was stored in a barn belonging to one Servis, the son-in-law of the plaintiff; that the plaintiff, at the time of the levy, notified the sheriff "that said automobile was subject to such chattel mortgage and demanded payment of said mortgage indebtedness upon said seizure, and thereafter in writing demanded from the defendant the payment of such mortgage indebtedness, but the defendant has refused and still refuses to make such payment; that five days after such seizure . . . the defendant released said levy and returned said property to the place where it was at the time said levy was made and tendered the same to the plaintiff, which release and return were made without the consent or assistance of the plaintiff, and that the plaintiff then and there refused to release said automobile from the defendant; that the said plaintiff did not at any time demand return of said property nor did he at any time release the same into his possession;" that the defendant, when the levy was made, had no knowledge of the mortgage "except constructive notice imparted by the record and the verbal notice given him by the plaintiff, but shortly after making said levy defendant learned of the record of said chattel mortgage and thereupon, and without the knowledge or consent or assistance of the plaintiff, said automobile was returned to the place from which the same had been taken and there abandoned, not being left in the possession of any one." Upon these findings the court held the plaintiff was entitled to judgment for the value of the automobile, found to be $ 250, together with interest and costs, and rendered and entered such a judgment, from which the defendant has prosecuted this appeal.

The assignments present questions as to the sufficiency of the evidence especially to support the finding that the automobile was returned "without the knowledge and consent of the plaintiff" and was "abandoned, not being left in the possession of any one," and as to the measure of damages.

In April, 1909, the plaintiff's son purchased a secondhand automobile for the sum of $ 1000. The plaintiff loaned him $ 850 for that purpose and took a mortgage on it. It was used as a rent car on the streets until in November of that year, when it was stored in Servis' barn near the plaintiff's residence and to which he had free access. Plaintiff's son thereafter went to California. He wrote his father "to jack up the car and take the air out of the tires." This was done. On February 4th two deputy sheriffs made a demand on the plaintiff for the possession of the automobile on a writ of attachment in an action against the son. According to the testimony of the plaintiff and others, he then told them he owned the car; that he had paid for it; and that he had a mortgage on it. According to the testimony of the deputies, he did not then tell them anything about the mortgage but told them he had loaned his son some money. Before the automobile was taken from the barn, one of the deputies, at the request of plaintiff, talked to plaintiff's attorney over the telephone. The attorney asked him if he did not know there was a mortgage on the automobile, and the deputy replied that he did not. After the automobile had been taken from the barn and the deputies were about to leave with it, Servis stated to them that he was the owner of the automobile and threatened to have them arrested. They took the automobile on the writ and placed it in a garage. The next day the plaintiff's attorney, in writing, notified the sheriff that the plaintiff held a mortgage on the automobile for the sum of $ 850; that the deputies had levied on it and seized it without paying the mortgage indebtedness and demanded $ 850 of the sheriff, together with interest, the amount of the mortgage debt. Three or four days after that, the sheriff released the levy and returned the automobile to the barn whence it was taken. Here there is again some conflict in the evidence. The deputy returning the automobile testified: When he drove up to the barn "I went and found Mr. Whittler (the plaintiff). He did not live where the barn is, but he lives a little distance away. I got him and told him we brought the car back, and he says, Well, I told that other fellow you would have to bring it back;' and he looked at the machine and went in and opened the doors. Then, before we done any more, he said, I want to telephone my attorney;' and I said All right.' I went with him across the alley to a house, where he spoke to his attorney over the phone. The attorney told me over the phone (I told him I was there to put the car back), Well, if you put it back, you will do it at your own risk.' At that time the doors had been opened, but the car had not been put in the barn." He further testified that the plaintiff assisted him and others in putting the car in the barn, and, after it was placed in position as found, the deputy said to the plaintiff, "Now, is it in as good shape as when it was taken out?" and that he said "Yes, but pump those tires up;" and "We pumped the air in; we then went away and the plaintiff closed the doors from the inside." According to the testimony of the plaintiff, when the deputy and his party brought the car back he said to the deputy, "What are you going to do now?" and the deputy replied, "We have brought the car back;" and that the plaintiff then said: "You can keep it. You took it against my will; now you can keep it. I don't want anything more to do with it." Continuing, the plaintiff testified: "Then he said that he was told to bring it back, and I said, Who told you?' and he said, Your lawyer;' and I said, Just wait a minute.' I then called up my lawyer and asked him, Did you tell the sheriff to bring back the automobile?' and he replied that he did not. . . . Then just as they were about to leave I ran out in the street and I said to them, I want you to understand distinctly once more before all these gentlemen that I don't accept this car.'" He further testified that, "if I had not consulted my lawyer about it, I would not have had any objection to their putting the car back in the barn." The chauffeur, who was with the deputy, a witness called for the plaintiff, testified that, when they were about to leave, the plaintiff stated: "Now, remember, I don't accept this car. You fellows leave it at your own risk." There is no dispute that the car, when it was returned, was in the same condition as when taken away, and that it was left in the barn uninjured and undamaged. There it ever since remained. There is no claim of any injury or loss suffered by the plaintiff during its detention, or that his lien was in any particular impaired, or that he otherwise suffered any loss.

We think the finding is justified that the plaintiff, at the time of the levy, notified the deputies that he held a mortgage on the automobile. The finding that it was returned without the knowledge of the plaintiff and was "abandoned, not being left in the possession of any one," is unsupported. The finding that the plaintiff did not demand the return of it and did not consent to its return is supported. The evidence shows it was with plaintiff's knowledge, but against his will and protest, returned to him and was with his assistance placed in the barn and there left either in his possession or that of his son-in-law. At any rate, it was left where taken and where the plaintiff had the same dominion and control over it as when levied on...