Wilson Motor Co. v. Dunn

• Decision Date: 14 February 1928
• Docket Number: 18117.
• Citation: 264 P. 194,129 Okla. 211,57 A.L.R. 17,1928 OK 123
• Parties: WILSON MOTOR CO. v. DUNN et al.
• Court: Oklahoma Supreme Court

264 P. 194

129 Okla. 211, 57 A.L.R. 17, 1928 OK 123

WILSON MOTOR CO. v. DUNN et al.

No. 18117.

Supreme Court of Oklahoma

February 14, 1928

Syllabus by the Court.

Under sections 284 and 285, Compiled Oklahoma Statutes 1921 considerable discretion is allowed the trial court as to the time of filing pleadings, and section 286, Compiled Oklahoma Statutes 1921, as to the form of pleadings, is liberally construed.

Under a general denial in replevin, the defendant may make any defense, which will defeat the plaintiff's claim or right to possession as against the defendants and under the Code great liberality is allowed to such defenses.

Although a chattel mortgage provides that the mortgagee under certain conditions may take possession of the mortgaged property, yet neither the mortgagee, its assignee, nor their agents has the right to take possession of the property by force, threats violence, or stealth, and without the consent of the mortgagor. The law will not permit a mortgagee to commit or threaten a breach of the peace and then to justify the conduct by a trial of the rights of property.

Under section 7423, Compiled Oklahoma Statutes 1921, a person holding a lien on personal property extinguishes the lien by wrongfully converting said property to his own use.

Conversion is any distinct act of dominion wrongfully exerted over another's personal property in denial or inconsistent with his rights.

The time of conversion is immaterial in a replevin action in respect as to whether it occurred prior or subsequent to commencement of the action.

Where property is held by a party under bond in a replevin action conditioned for the redelivery of the specific property, in the event he should not prevail in the action, such property is to be considered in custodia legis, the same as if the actual possession was with the officer.

Conversion existing by the act of mortgagee of mortgaged property pledged by mortgagor to a third party and the lien for the mortgage being thereby extinguished, the pledgee as defendant in a replevin action brought by mortgagee is entitled to set up the conversion and recover judgment for return of the property or in lieu thereof his interest to the extent of his lien by reason of the pledge and damages (including attorney fees).

An action in replevin is primarily a suit for possession of personal property. The gist of the action of replevin is plaintiff's right to immediate possession of the personal property in controversy, at the commencement of the action by reason of ownership or special interest therein, but, by reason of section 323, Compiled Oklahoma Statutes 1921, it is the policy of the law to settle in one action all the conflicting claims of the parties to the possession of the property in controversy, and, where facts have arisen since the commencement of the action and before judgment which would vary the relief to which plaintiff or defendant would have been entitled at the commencement of the action, such facts may be alleged in amended petition, answer or cross-petition.

A second action of replevin cannot be maintained by a third party to recover property held under a bond in a replevin action, because the property involved is considered in custodia legis and the remedy is by intervention.

First National Bank v. Kreuzberg, 75 Okl. 97, 181 P. 717, overruled.

Appeal from District Court, Caddo County; Will Linn, Judge.

Action by the Pierce-Arrow Finance Corporation against Jack Dunn and others, in which the Wilson Motor Company intervened and in which named defendant by cross-petition alleged conversion by plaintiff and intervener of property in his possession. From a judgment for named defendant after sustaining of his demurrer to testimony of the intervener, the latter appeals. Affirmed.

E. D. Brewer, of Tulsa, for plaintiff in error.

Morris, Johnson & Wilhite, of Anadarko, for defendants in error.

RILEY J.

This cause of action was instituted in replevin in the district court of Caddo county on November 2, 1925, by Pierce-Arrow Finance Corporation, for the recovery of a Pierce-Arrow automobile alleged to have been purchased by H. L. Cokes. The petition avers that Cokes executed and delivered to the Pierce-Arrow Finance Corporation, two mortgage contracts, dated August 14, 1925, in the sum of $5,538; that the property so mortgaged was taken into Tulsa county by Cokes and the mortgage contracts were in said Tulsa county duly recorded; that the said mortgages provided acceleration clauses; that Cokes, on September 22, 1925, made default in payment according to the terms of the mortgages and that at date $5,000 was due, and by reason of said lien and special ownership plaintiff was entitled to possession of the property. There was a prayer for special damages, in the sum of $2,500, and attorney fees of $900 and possession of the property, or, in lieu thereof, the value, to wit, $5,000. The car was taken in replevin from the immediate possession of C. P. Warner, Manfred & Wallace, a partnership, doing business in Anadarko under the name of Yellow Front Garage. Jack Dunn, defendant in error, caused a redelivery bond to be given and retained possession of the car.

There was filed an answer in the form of a general denial.

On March 1, 1926, a dismissal by Pierce-Arrow Finance Corporation was filed. On March 6, the defendants Warner and Manfred filed their application to try title to property, setting out their answer, and further alleging that on February 27, 1926, the plaintiff through its agents took possession of the car. On May 3, 1926, plaintiff, by order, was permitted to withdraw its dismissal. On the same date Wilson Motor Company, a corporation, was allowed to intervene, and it alleged that on February 1, 1926, since the commencement of the action, the plaintiff had charged back to it as original mortgagee and indorser, the mortgages and notes involved, and thereby it had acquired plaintiff's interest in the car and was so entitled to recover. It prayed for punitive damages in the sum of $10,000. William Shaffer and Jack Dunn were made parties defendant, and thereafter Warner and Wallace, as well as Shaffer, for their answers, adopted that of Dunn, whose answer and cross-petition, after denial of allegations in the petition and intervening petition and admission that Cokes was the owner of the car and allegation that he continued to be such owner even after August 14, 1925, averred that on October 17, 1925, Cokes brought the car to Anadarko, and on the 18th or 19th of that month Cokes borrowed from Dunn $2,800, and pledged the car to secure payment thereof under agreement to pay said amount within fifteen days from date, and the car by Dunn was placed in the garage (of Warner, Manfred & Wallace) to be held in storage for defendant. There was recited the commencement of the action in replevin and the affidavit of replevining therein filed by L. D. Reymendant, agent of plaintiff, and an amended affidavit of replevining subscribed and sworn to on December 23, 1925, by M. Bristow, plaintiff's attorney, further alleging an inquiry by defendant on November 2, 1925, concerning the interest of intervener Wilson Motor Company and information thereby obtained as to no interest claimed and the giving of a redelivery bond and the retention of possession until February 26, 1926, when defendant borrowed from William Shaffer the sum of $2,500, and delivered into the custody of William Shaffer the possession of the car to hold jointly with defendant as security; that defendant had actual possession of said car until February 27, 1926, when plaintiff and intervener, by and through Reymendant and Brewer, agents, by force and violence broke open the building containing the car and unlawfully stole and carried away the same and converted the same to plaintiff's and intervener's own use and benefit. Defendant prayed estoppel as against the alleged wrongdoers from claiming any interest in the property.

By way of cross-petition, after adopting the allegations of his answer, defendant set up that he had insured the car at an expense of $100, and storage expense of $20, and attorney fee of $500, and his lien by virtue of the pledge agreement in the sum of $2,800, and prayed that his lien be foreclosed and that $2,500 be applied after the expense set out, to payment of the interest of William Shaffer, and the remainder to the interest of defendant, and that defendant be decreed to have a first lien. Replies denying were filed. The plaintiff and intervener moved for continuance on account of absence of a material witness, Cokes, and it was agreed, in order to go to trial, that, if present, he would testify that there was no consideration for the pledge to Dunn, and that said automobile was taken from him by force of arms, and that defendants had notice of the execution of the lien and mortgage of plaintiff. After the issues were fully made up and the jury impaneled, orally, the plaintiff and intervener demurred to the cross-petition and moved to strike allegations of conversion from it. The demurrer and motion was overruled by the court upon objection on the ground that the issues were fully made up theretofore.

At the conclusion of plaintiff's testimony, defendant demurred thereto, and the court sustained it. Upon the conclusion of intervener's and defendants' testimony, defendants moved the court for a directed verdict for possession of the property, and in lieu thereof the value of the same, which the court treated as a demurrer to the testimony, and the court stated:

"The court finds that the Wilson Motor Company, on the 27th day of February, 1926, acting through its agents, taking possession of said automobile while the same was in custodia legis in the suit pending between

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