33 Minn. 253 | Minn. | 1885
In a former action in the nature of replevin, brought by this defendant against this plaintiff, a recovery of the possession of a portable steam-engine was sought. The statutory bond required in such actions was given, the plaintiff (this defendant) being the principal obligor. Upon the proper requisition the property was taken from the defendant, Boom, and delivered to the plaintiff in that action. The cause was tried before the court without a jury, upon an agreed statement of the facts, and upon the pleadings, showing among other things that the plaintiff’s (this defendant’s) right was that of a mortgagee, from two persons owning the property as tenants
Subsequent to the proceedings above recited, this action was commenced upon the replevin bond. The condition of the bond is that the plaintiff “shall prosecute said action with effect, and return said property to said defendant, if a return is adjudged, and shall pay to him such sum as for any cause may be recovered against the plaintiff.” The breach for which a recovery is sought is that this defendant did not prosecute its action with effect.
The condition to prosecute the replevin action “with effect” is to be construed as meaning with success, or to a successful termination. Morgan v. Griffith, 7 Mod. 380; Perreau v. Bevan, 5 Barn. & C. 284; Jackson v. Hanson, 8 M. & W. 477; Tummons v. Ogle, 37 Eng. Law & Eq. 15; Gibbs v. Bartlett, 2 Watts. & S. 29; Brown v. Parker, 5 Blackf. 291; Berghoff v. Heckwolf, 26 Mo. 511. The judgment was not such as should have been rendered upon the facts as determined by the court. The court probably forbore to order judgment for a return of the property to the defendant, upon the theory that since both parties had, as was considered, equal rights to the possession of it, no judgment for possession should be awarded in favor of either. But if both parties had equal rights to a possession of the property,
It was not necessary to the maintaining of an action for this breach of the bond that there should have been a judgment in the replevin action for a return of the property, or for damages. This condition is distinct and independent of the other conditions of the bond, and for its breach an action will lie. Morgan v. Griffith, supra; Gibbs v. Bartlett, supra; Balsley v. Hoffman, 13 Pa. St. 603; Gardiner v. McDermott, 12 R. I. 206; Persse v. Watrous, 30 Conn. 139; Manning v. Manning, 26 Kan. 98; Hall v. Smith, 10 Iowa, 45; Berghoff v. Heckwolf, supra; Brown v. Parker, supra; Smith v. Whiting, 100 Mass. 122.
Clark v. Norton, 6 Minn. 277, (412,) relied upon by the appellant, is not opposed to this. There had been no breach of any condition of the replevin bond in that case, and the language of the court, considered with reference to the facts, does not support the position of the appellant here.
The further question is presented as to whether the former judgment “dismissing the action” of this defendant against this plaintiff had the effect of a final determination as to' the issues of title therein involved, or had only the effect of a nonsuit or discontinuance. While the action was in the nature of a common-law action of replevin, the judgment was substantially in the form adopted in chancery when, the determination being in favor of the defendant, the bill was dismissed. Such a judgment was unknown at the common law. Bond
The provision that the judgment should be "without prejudice to any proceeding which the plaintiff may hereafter take looking to the foreclosure of its mortgage, or the perfection of its legal title to said property,” had reference to that mortgage interest which the court recognized as still in force; that is, as to the undivided one-half of the property. The court was careful to so provide that the adjudication in favor of the defendant as to his title, discharged of the mortgage, should not be deemed to estop the mortgagee from enforcing its mortgage as to the other undivided half of the property.
Order affirmed.