Yellowstone Sheep Company v. Ellis

• Decision Date: 12 December 1939
• Docket Number: 2101
• Parties: YELLOWSTONE SHEEP COMPANY v. ELLIS
• Court: Wyoming Supreme Court

96 P.2d 895

55 Wyo. 63

YELLOWSTONE SHEEP COMPANY v. ELLIS

No. 2101

Supreme Court of Wyoming

December 12, 1939

[Copyrighted Material Omitted]

APPEAL from the District Court, Fremont County; HARRY P. ILSLEY Judge.

Action by the Yellowstone Sheep Company against Lillian G. Ellis to replevin property mortgaged to plaintiff by defendant wherein defendant filed a cross-petition. From judgment entered, the plaintiff appeals.

Affirmed in part; in part, reversed with directions.

For the appellant, there was a brief and the cause was argued orally by F. B. Sheldon, Jr., and H. S. Harnsberger of Lander.

The trial court erred in granting the order restraining the service of the writ of replevin in said cause and in refusing to vacate the same upon the application of plaintiff. Sec. 89-3502, R. S. 1931; 32 C. J. 34, § 14; 32 C. J. 57, §§ 37-38. Defendant had a complete remedy at law. Section 89-4007; Schlessinger v. Cook, 8 Wyo. 484, 58 P.2d 757. The court erred in assuming to adjudicate the question as to whether or not the lease assignments were absolute or conditional in the replevin action. Schlessinger v. Cook, supra; Holland Furnace Company v. Bird (Wyo.) 21 P.2d 825; Cobbey on Replevin, 2d Ed., # 791; Jones v. Parker (Wyo.) 273 P. 687 and cases cited. The trial court erred in failing to find that plaintiff was entitled to possession of the mortgaged property at the commencement of this action. Schlessinger v. Cook, supra. The court erred in refusing to permit the plaintiff to plead, prove and recover reasonable attorney's fees as a part of its cause of action against the defendant. Section 89-4014; Hopkins v. Anderson (Cal.) 21 P.2d 560 and cases cited therein; Anderson v. Show, 12 P.2d 1045; Folen v. Saxton, 171 P. 699; Jones on Chattel Mortgages, § 488; Eade v. First National Bank (Ore.) 242 P. 833; Securities v. Mast (Ore.) 28 P.2d 635; Leesi v. Yamhill County (Ore.) 298 P. 908; Bank v. Howard, 158 P. 927; 11 C. J. 619, § 328. Plaintiff's reply was not a departure. 49 C. J. 345; Easton v. Quackenbush (Ore.) 168 P. 631; Beecher v. Thompson, 207 P. 1056; Church v. Brown, 272 P. 511; Lawrence v. Halverson, 83 P. 889; 21 R. C. L. 557; Houston v. Sledge, 2 L. R. A. 487. This case differs from Graves v. Burch, 26 Wyo. 192. There was no tender of payment. No imposition was practiced on defendant. The court erred in its finding and judgment that the assignment of leases was conditional for the security of plaintiff's loan. McFadden v. French, 29 Wyo. 401; Jones on Evidence, Vol. 3, § 1534, § 1535; L. R. A. 1916B, p. 253, § 122. The court erred in finding that defendant had been damaged by plaintiff's use and occupation of the leased land. Washakie Livestock Loan Company v. Meigh, 62 P.2d 423. The court erred in holding for naught the contract for sale of lands entered into between plaintiff and defendant on May 1, 1935, directing possession of said lands to be returned to defendant. No such relief was prayed for in defendant's answer and cross-petition. Moreover, the question as to defendant's right to repurchase the land from the Federal Land Bank is being litigated in the case of Federal Land Bank v. Ellis, No. 5460 in the District Court of Fremont County, Wyoming. The court erred in awarding costs against the plaintiff. The court erred in refusing to modify its order staying judgment so as to permit the Clerk of Court to pay over the amount of plaintiff's judgment, after plaintiff had assigned the state leases to the defendant.

For the respondent, there was a brief by A. H. Maxwell of Lander, and E. E. Enterline and Madge Enterline of Casper, and oral argument by Messrs. Maxwell and Enterline.

The order of the trial court sustaining the motion to deny review of judgment and dismiss appeal should be sustained. 4 C. J. 396-397; 2 Amer. Jur. 972; Harmon v. James (Kan.) 69 P.2d 690; Elliott v. Orton (Okla.) 171 P. 1110; Ottenheimer v. Mountain States Supply Company (Utah) 188 P. 1117; Paulson v. McCormick (Kan.) 1 P.2d 259; Paul v. Distributing Company (Kan.) 52 P.2d 379. The trial court did not err in granting the order restraining service of the writ of replevin and in refusing to vacate the same, nor was there error in adjudicating the question as to whether or not the lease assignments were absolute or conditional. The trial court properly restrained service of the writ of replevin and in adjudicating the question as to whether or not the lease assignments were absolute or conditional. Schlessinger v. Cook, 8 Wyo. 484; Jones v. Parker, 39 Wyo. 423; Furnace Company v. Bird, 45 Wyo. 471. Defendant had a right to plead an equitable defense. Anderson v. Rasmussen, 5 Wyo. 44; Iba v. Association, 5 Wyo. 355; § 89-1014, R. S. 1931; § 89-1018, R. S. 1931, 25 R. C. L. §§ 91, 104; Vallancey v. Hunt (N. D.) 129 N.W. 455; Morgan & Co. v. Spangler, 20 Ohio St. 38; Ross Company v. Kent (Nebr.) 131 N.W. 944; Miller v. Thayer (Kan.) 150 P. 537; Clement v. Field, 147 U.S. 467; McCormick Company v. Hill (Mo.) 79 S.W. 745; Reardon v. Higgins (Ind.) 79 N.E. 208. There was no error in the trial court's failing to find that plaintiff was entitled to the possession of the mortgaged property at the commencement of the action. Gregory v. Morris, 1 Wyo. 213; Jones v. Parker, supra. There was no error in refusing to permit the appellant to plead, prove and recover reasonable attorneys' fees as a part of its cause of action against respondent. Knight v. Commercial Company, 6 Wyo. 501; Finance Corporation v. Commercial Credit Company (Wyo.) 283 P. 1101; Housley v. Tobin, 41 Wyo. 419; 34 Cyc. 1565. There was no error in assuming to adjudicate the total amount of appellant's recovery before trial and in authorizing the release of appellant's mortgage upon payment into court of the sum of $ 17,500.00. Section 89-1064, R. S. 1931; Oviatt v. Hohnholtz, 43 Wyo. 174; Willis v. Willis (Wyo.) 54 P.2d 814. There was no error in the finding and judgment that the assignment of leases was additional security for the loan made respondent by appellant, in view of the evidence. There was no error in the court's finding that the use and occupancy of the leased lands by appellant was worth $ 2.50 per acre, and that respondent had been damaged in the sum of $ 17,084.87, and in rendering judgment in that amount for respondent against appellant. Schrandt v. Young (Nebr.) 86 N.W. 1085; Jones v. Parker, supra; Iba v. Association, supra. No error was committed by the court in cancelling and holding for naught the contract for the sale of lands entered into between appellant and respondent on May 1, 1935, and directing possession of the lands to be returned to respondent. There was no error in awarding costs against appellant. Secs. 89-2709-2712, R. S. 1931. The trial court committed no error in refusing to modify its order staying judgment, so as to permit the clerk of court to pay over the amount of appellant's judgment, after appellant had assigned the state's leases to respondent, in view of the facts established by the evidence.

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

OPINION

BLUME, Justice.

On May 1, 1935, Lillian G. Ellis, the defendant in the case below and respondent here, was the owner of certain lands in Fremont County, Wyoming, including certain isolated tracts hereinafter to be mentioned. A mortgage on the premises had been foreclosed and the period of redemption expired some time in the fall of 1935. Prior to May 1, 1935, she had also been the owner of certain personal property, consisting of cattle, sheep, and other property, and was also the owner of certain leases on state land. A mortgage had been given on the personal property to the Rock Springs National Bank. The mortgage had been foreclosed, but the defendant had been given the privilege to redeem her property until May 1, 1935. On the last mentioned date, and the day after, she entered into four transactions with the plaintiff. The first transaction was as follows: She borrowed of the plaintiff the sum of $ 25,000 and gave her note therefor, due in six months, providing for an attorney fee and expenses of collection in case of default. This amount was not sufficient to pay the Rock Springs National Bank, and she accordingly borrowed $ 1000 more on May 2. She gave a mortgage to secure all of this indebtedness on about 460 head of steers, 29 horses, about 1700 head of sheep, and some other personal property. This mortgage was also security for any future advances which plaintiff might make to the defendant. About $ 5600 was advanced after May 1, 1935, of which $ 3750 was advanced by plaintiff to the defendant for operating expenses after the due date of the $ 25,000 note hereinbefore mentioned. The second transaction was as follows: On May 2 1935, the defendant agreed to sell the sheep mentioned in the above mortgage for the sum of $ 8000. The plaintiff agreed to buy them, provided that the sale should subsequently be found to be satisfactory to it. It was so found thereafter and credit was given to the defendant on her indebtedness for the sum of $ 8000. The receipt given by plaintiff for this credit will hereafter be mentioned. The third transaction was as follows: Either on May 1 or May 2, 1935, the defendant made an assignment to plaintiff of the leases on about 6833 acres of state land. These leases are in controversy here, the plaintiff claiming that they were assigned in consideration of its purchase of the above mentioned sheep, the defendant claiming that they were assigned merely as additional security for the indebtedness mentioned above. The leases expired on March 1, 1938. The fourth transaction was as follows: Plaintiff and defendant entered into a written contract for the purchase by plaintiff from the defendant of certain isolated tracts, consisting of 1040 acres, at the sum of...