Woodward v. Edmunds

• Citation: 20 Utah 118,57 P. 848
• Court: Supreme Court of Utah
• Decision Date: 27 June 1899
• Parties: JAMES C. WOODWARD, RESPONDENT v. JOHN EDMUNDS, APPELLANT

57 P. 848

20 Utah 118

JAMES C. WOODWARD, RESPONDENT v. JOHN EDMUNDS, APPELLANT

Supreme Court of Utah

June 27, 1899

Appeal from the Seventh District Court, San Pete County, Hon. Jacob Johnson, Judge.

Action in replevin to recover certain sheep, or their value.

From a judgment for plaintiff defendant appeals.

Reversed and remanded.

Messrs Brown & Henderson and A. G. Sutherland, Esq., for appellant.

D. D Houtz, Esq., Ferd. Erickson, Esq., and Soren X. Christensen Esq., for respondent.

BARTCH C. J. MINER, J., concurring in the judgment. BASKIN, J., concurring in part and dissenting in part.

OPINION

BARTCH, C. J.

This was an action in replevin to obtain possession of 2178 head of sheep, or judgment for their value in the event that delivery could not be made. The plaintiff recovered judgment for 2016 head, which included 1627 delivered to him on the writ, and 389 head for which, they not having been delivered, a money judgment was rendered in the sum of $ 641.85. The complaint was filed on September 20, 1897, and it was alleged, inter alia, that on August 26, 1897, at Orangeville, Emery county, Utah the plaintiff was the owner and entitled to the possession of 2173 head of sheep of the value of $ 3,802.75; that the defendant, on the day last mentioned, at the county of Emery, wrongfully took said sheep from the plaintiff's possession; and that upon demand made therefor the defendant refused to deliver possession to plaintiff and continued to withhold the same. The judgment demanded was for the possession of the sheep, or, if delivery could not be had, for their value.

The allegations of ownership and right of possession of plaintiff, and unlawful taking and withholding by defendant, and demand, were all specifically denied in the answer, filed September 30, 1897. It was then set up in the answer, as an affirmative defense, that 1,900 head of the sheep belonged to the defendant, and, at the time of the taking, were in the possession of the plaintiff, under a lease made about June, 1897, to be cared for and herded by the plaintiff, at a certain rental as to wool and increase, until September, 1897, when they were to be returned to the plaintiff at Wales, San Pete county, Utah; and that when, on August 26, 1897, the defendant took the herd at Orangeville and drove them to his place at Wales, the title of the sheep was in the defendant and they belonged to him. Under these pleadings the cause was tried before the court without a jury.

We will first notice the question of jurisdiction. As the pleadings thus stood, the gravemen of the action was the wrongful taking and unlawful detention. If the taking was wrongful then the detention was unlawful from the first and continued so.

At common law the action would have been replevin in the cepit, which resembles the old common law trespass, vi et armis, and puts in issue only the taking, and in such case, the taking being wrongful no demand for a return of the property was necessary before the bringing of suit. Nor under our system is a prior demand necessary where the suit is to recover property tortiously taken. Phillips on Code Pl. sec. 492; Cobby's Law of Replevin, sec. 8; McNally v. Connolly, 70 Cal. 3, 11 P. 320; Surles v. Sweeney, 11 Ore. 21, 4 P. 469.

The alleged invasion of the plaintiff's rights occurred in Emery county. Both the unlawful taking and detention of property--the things which gave rise to his cause of action, in the first instance, took place, as appears from the pleadings above referred to, in that county, and under our constitution, Art 8, sec. 5, the district court in San Pete county had no jurisdiction to try the case. The demand made for the return of the property, as we have seen, was not necessary to the bringing of the action for the wrongful taking and detention, and, therefore, constituted no part of the cause of action and could not affect the question of venue. It is a fundamental right of every defendant in an action in this State to have the same commenced and tried within the county where the act, which gave rise to the cause of action, occurred, subject to a change of venue in such cases as may be provided by law. This court so held in Konold v. Rio Grande Western R'y Co., 16 Utah 151, 51 P. 256, where it was said: "Though a court has jurisdiction of the subject-matter of an action commenced in the county where the cause arose, and power to hear and determine the cause, and render judgment therein, yet the same court, in a like case, brought before it in the first instance, has no such jurisdiction and power, if it appear as a fact that the cause arose in another county, or without the territorial limits of its jurisdiction; and if the court assumes jurisdiction under the circumstances last indicated, and attempts to hear and determine a cause, any judgment which it may render will be null and void, and of no effect whatever. The only power it has, under such circumstances, is to dismiss the case. The objection that the court has no jurisdiction to hear and determine the cause cannot be waived." Deseret Irr. Co. v. McIntyre, 16 Utah 398, 52 P. 628; Condon v. Leipsiger, 17 Utah 498; 55 P. 82; Brown v. Bach, 17 Utah 435; 53 P. 991; Mosby v. Gisborn, 17 Utah 257; 54 P. 121.

The force of the foregoing principles and rules of law were doubtless recognized by counsel for the respondent, at the trial of the cause, for, as shown by the record, after the testimony on both sides had about all been introduced, at the argument of the question of jurisdiction, they sought for and obtained leave of court to amend, and thereupon did amend, their complaint. The purpose of the amendment evidently was to so change the pleadings as to make them conform to what, at common law, was replevin in the detinet, to avoid the fatal effects of the venue as laid in the original complaint which would have rendered a dismissal of the action imperative. When the action is such as would constitute replevin in the detinet a demand and refusal must be alleged in the complaint, for that action lies where the original taking was not wrongful--where the defendant came lawfully into possession of the goods or chattels, but was bound to relinquish possession upon demand made therefor, and upon demand and refusal continues to retain them wrongfully. In such case there is no wrongful detention and no right of action until a demand is made and met with a refusal. Phillips on Code Pl. sec. 492; 3 Bl. Comm. 151-153; Campbell v. Jones, 38 Cal. 507.

It follows that immediately at the time when and place where the demand and refusal occur the cause of action arises and not until then. Hence, when, as in this State, the wrongful detention is the gist of the action, the case must be tried in the county where the property is found and demand made. Whether, however, the wrongful detention, or the wrongful taking and detention, be the gist of the action, in either case, the plaintiff, in replevin, in order to recover, must show that, at the time of bringing the action he had the right of immediate possession. 3 Bl. Com. 145; 1 Chitty Pl. 168; Phillips on Cod. Pl. secs. 99, 106; Cobbey on Replevin, sec. 1124; O'Connor v. Blake, 29 Cal. 312 at 313; Whitwell v. Wells, 24 Pick. 25, 33; Johnson v. Neale, 6 Allen 227.

In the case at bar it does not appear, as we view the evidence before us, that the plaintiff, at the time when this action was brought, had any title in the property or any right of possession therein, which would entitle him to maintain this action, even if the venue was properly laid in San Pete county under the amended complaint. If we are right in this, then, if it were conceded that, in the amended complaint, the plaintiff stated a case which was triable in San Pete county, and that the amendment was properly admitted, still the plaintiff has shown no right of recovery in this form of action. Whether then the cause were tried in San Pete or Emery county would make no difference as will presently be seen. For this reason we shall refrain from deciding the question whether or not the court transcended its power in authorizing the amendment to the complaint, and proceed to determine the rights of the parties as shown by the record and their contracts in evidence.

It appears that about October, 1894, the defendant leased, by contract in writing, to the plaintiff and one Barentsen 1,461 head of sheep on shares, until September 1, 1895, the lessor to receive a certain amount of the wool and increase of the herd. The sheep had the defendant's permanent mark on them and were to be returned to him at his place in Wales at the expiration of the lease. The next year, about September, 1895, the herd, then numbering 1,606 head, was again leased to the same parties under similar terms and conditions, until the first of September, 1896. After the expiration of this contract, there were delivered to the defendant 1,753 head, and about October 10, 1896, were leased to the plaintiff until June 15, 1897, Barentsen no longer continuing as a lessee. Under this lease the sheep at the expiration of the term were to be delivered at defendant's home, same as previously, but about June 10, 1897, the defendant went to Orangeville, Emery county, where the sheep were, and they were delivered to him there. It appears that defendant's sheep were always marked with his own permanent mark. The number delivered to defendant on June 10, 1897, was 1,900 head, and they were again leased to plaintiff by written contract, as follows:

"This agreement made this 10th day of June, 1897, between John Edmunds, of Wales, San Pate county, Utah party of the first part, and James C....