Wyman v. Bowman

• Decision Date: 30 March 1880
• Citation: 71 Me. 121
• Parties: HOWARD B. WYMAN v. FRANKLIN BOWMAN.
• Court: Maine Supreme Court

71 Me. 121

HOWARD B. WYMAN v. FRANKLIN BOWMAN.

Supreme Judicial Court of Maine.

March 30, 1880

ON REPORT from the superior court, Kennebec county. The law court were to draw inferences as a jury might, and render such judgment as the law and the evidence, legally admissible, require. The material facts appear in the opinion.

G T. Stevens, for the plaintiff, cited: 3 Allen 426; Davis v. Dunklee, 9 N.H. 545; Davis v Granger, 3 Johns. 259; Percival v. Hickey, 18 Johns. 257; Buffum v. Tilton, 17 Pick. 510; 1 Chitty Pl. 454, note 3; Marble v. Keyes, 9 Gray 222.

Heath & Wilson, for the defendant.

Judgment for a return is a bar to trover. The case, 3 Allen 426, cited by plaintiff, was where there was no replevin bond. Here there was such bond, and plaintiff has elected his remedy by bringing suit upon it. He cannot maintain trover now. Tuck v. Moses, 54 Me. 115; Parker v. Hall, 55 Me. 362; McKnight v. Dunlap, 4 Barb. 36; Morris v. DeWitt, 5 Wend. 71; Rice v. King, 7 Johns. 20; Sangster v. Commonwealth, 17 Gratt. (Va.) 124. Plaintiff in replevin has a right to sell. Gordon v. Jenney, 16 Mass. 465.

DANFORTH J.

This is an action of trover, to recover the value of a pair of oxen alleged to be the property of the plaintiff, and to have been converted to his own use by the defendant. The plaintiff testifies to his own title, which is not denied by the pleading or evidence of the defendant, and the alleged conversion is admitted.

The defendant puts in evidence, the record of an action of replevin in favor of William B. Robinson against this plaintiff, in which the title to these same oxen was in question, and claims that such record is a bar to any recovery in this suit.

It appears from the record of that suit that it was decided in favor of the defendant, the present plaintiff; that he had a judgment for a return, upon which a writ of restitution was issued and returned unsatisfied, and that subsequently he commenced a suit upon the replevin bond, which is still pending; and it is claimed that this plaintiff,--having been successful in the replevin suit, having obtained his judgment for a return with a writ of restitution,--has elected the remedy which the statute gave him in such cases, and it is now too late to avail himself of this action of trover even though it might have been open to him before such an election had been made.

But it also appears that this defendant was not a party to that action, and hence in no way bound by the proceedings or judgment therein; and on what principle of law he can avail himself of such proceedings and judgment is not apparent, nor has it been pointed out in the argument. True, it is suggested, that during the pendency of that action or subsequent to the judgment, this defendant purchased the oxen of the then plaintiff, though of this we find no evidence in the case. There is some evidence tending to show that he bought them of one of the sureties in the replevin bond, but nothing further.

But assuming the suggestion as true, we do not perceive that his position is any better. If in that way he becomes a privy to that judgment and bound by it, he cannot, as in fact he does not, deny the plaintiff's title to the oxen. It was so decided and he had a judgment for a return which has never been complied with,--nor has his action on the bond afforded him any damages for such non compliance. His title to the oxen has been legally affirmed, he has not received them, nor any pay for them, and this defendant has converted them to his own use. This ordinarily would seem to be sufficient to authorize him to recover. It certainly is not easy to see how the judgment for return with a writ of restitution can change the title of which it is directly confirmatory. In White v. Philbrick, 5 Me. 147, it was held that a judgment in trover, if execution be sued out thereon, does so far change the title to the property that an action of trespass cannot afterwards be sustained against another person, for taking the same goods. No case however, it is believed, has gone any further than this, and in Murray v. Lovejoy et al. 2 Clifford, 191, it is clearly shown that the decided weight of authority, is, that there must not only be a judgment for the value, but satisfaction before an action against another person...