181 P. 717 | Okla. | 1919
The First National Bank of Wellston commenced this action against the defendant, Frank Kreuzberg, to replevy two mules, claiming a special ownership in the property by reason of a chattel mortgage. The mules were taken by a writ of replevin, and the defendant failed to give a redelivery bond, and the mules were delivered to the plaintiff. The defendant filed his answer, which was a general denial, and claiming that the note which the mortgage was given to secure was usurious, and there was nothing due thereon, and further alleging that the plaintiff had sold the mules and thereby lost his lien, and defendant was entitled to damages for the unlawful detention of the same, and for the value of the mules. The plaintiff replied by general denial and pleading that the question of usury as set forth in the answer had been once adjudicated in a former case.
At the close of the evidence, upon motion of the defendant, the court peremptorily instructed the jury to return a verdict for the defendant for the value of the property and the wrongful detention thereof, stating as follows:
"It is the judgment of the court from the evidence in the case the defendant is entitled to recover on the theory that the mules taken under the mortgage were sold without the determination of this replevin action, and, these mules being exempt property, the defendant is entitled to recover from the plaintiff as damages for the wrongful taking and selling of the mules. * * *"
To the giving of this instruction the plaintiff excepted. The jury returned a verdict according to the instruction of the court in favor of the defendant and against the plaintiff for the value of the mules and the wrongful detention thereof. From this judgment the plaintiff has appealed. The question presented is:
"Whether the disposing of the property by the plaintiff prior to the determination of the replevin action affected the issues in the case."
This question has been before this court in identically the same kind of an action, and has been settled by this court in the case of Fidelity Trust Co. v. Pumroy,
The gist of replevin is plaintiff's right to the immediate possession of the personal property in controversy at the commencement of the action by reason of his being the owner or having a special interest therein. Tulsa Rig, Reel Mfg. Co. v. Arnold, 64 Oklahoma,
The question as to whether the mortgaged property had been disposed of by the mortgagee pending the determination of the suit was not an issue in the case, and had no place either in the pleadings or the evidence unless incidentally to ascertain the value of *98 the property. The questions to be determined were:
First. Was the plaintiff entitled to the possession, at the time of the commencement of the suit?
Second. If the defendant recover, then section 4807, Rev. Laws of 1910, provides that, if the defendant recover in a replevin action, the judgment shall be for the return of the property, or the value thereof in case the return cannot be had, and damages for the unlawful taking and withholding the same.
These are the issues that should have governed in the case at bar. The court evidently went upon the theory that the case of Haltom v. Nichols Shepard Co., 64 Oklahoma,
There are other assignments of error complained of, but it would be impossible to pass upon the same in this proceeding, as this error had the effect of eliminating the other questions.
The court committed error in instructing the jury to return a verdict for the defendant.
The case is therefore reversed and remanded, with instructions to grant plaintiff in error a new trial.
All the Justices concur.