201 Md. 433 | Md. | 1953
delivered the opinion of the Court.
The appeal in this case requires a decision as to whether the judgment in a replevin suit in the Circuit Court for Charles County fully determined the question of title and is binding in a subsequent suit on the replevin bond, against the surety.
John A. Brickley, owner of a farm in St. Mary’s County, known as De La Brooke Manor, sold the place by contract dated June 27, 1949, to an Indian known as Will Brooks — Chief Hawk Eagle. Of the 300 acres sold, some 240 acres were in timber. The contract provided that the Indian Chief should pay a deposit of $1,000.00 on account of the purchase price of $16,000.00, and should pay an additional $4,000.00 in four months, at which time settlement was to be made. The balance of
The Indian Chief remained in possession. During this period, John W. Ritter opened negotiations with Brickley for the purchase of the timber. He made a written offer which was orally refused by Brickley. About the first of July, 1950, Brickley learned that Ritter had entered upon the land, had commenced cutting the timber, and was hauling it to Waldorf in Charles County. He notified Ritter to stop cutting. Being informed that some of the logs cut had been taken to Waldorf, Brickley instituted an action of replevin against Ritter in the Circuit Court for Charles County, recovered possession of the logs and sold them for $1,077.69.
After the replevin action had been brought, Brickley and the Indian Chief entered into a contract entitled “Cancellation of Contract”. This agreement recites the contract of sale of June 27, 1949, and the subsequent default by the purchaser, authorizes the purchaser to remove the crops, requires Brickley to refund $3,100.00, and leaves the purchaser in possession, rent free, until the farm is sold.
At the trial of the replevin case, Brickley was the only witness. After hearing his testimony and consid
At the trial of the suit on the replevin bond, the proceedings in the replevin case were introduced in evidence, and the Court, hearing the case without a jury, ruled that in the replevin case there was “a determination that Brickley was not entitled to the timber or logs mentioned in the replevin writ; that the Indian Chief did have a right to sell, and that Ritter did purchase. . . So the question now before the Court is, how much, if any, is due on the bond filed in connection with the replevin suit?” The Court refused a proffer from John A. Brickley that the Indian Chief had wholly defaulted, and the other facts as to Ritter’s offer to purchase and Brickley’s refusal, and that thereafter, Brickley found Ritter seated in an automobile talking to the Indian Chief on the farm, in the presence of another Indian, Chief Turkey Tayac, and that Brickley thereafter received a telephone call from Chief Turkey Tayac, telling him that Ritter had gone on the farm and cut the timber. A similar proffer from Chief Turkey Tayac was also overruled. Judge Digges said: “We overrule the proffer, with the observation that those facts, together with some other facts, were before the Court in the replevin case, John A. Brick
The damages claimed in the declaration by Ritter were $548.60, arrived at by computing the value of 20,648 board feet of logs at $75 per thousand, the price at which Miller & Bradley, Inc. had agreed to buy them, less $1,000.00 advanced on the price by that corporation. There is no dispute that there were 20,648 broad feet cut and sold. Miller & Bradley, Inc. claimed $1,591.20, made up of the $1,000.00 advanced by them, net profit at the rate of $25 .per thousand board feet, and interest of $75.00. Judgment was entered for Miller & Bradley, Inc. in the amount of $1,516.20, the amount of the claim without interest, and judgment was entered in favor of Virginia Ritter, Administratrix, for $342.12, representing the $548.60 claimed, less $206.48, or $10 per thousand, which was the amount mentioned in the contract of June 27, 1949, that the Indian Chief was to pay Brickley for any timber he cut.
The appellant argues that the Trial Court erred in ruling that the replevin action was conclusive as to the title of the logs which have been replevied. It bases its argument on two grounds — first, that a judgment in replevin which does not comply with Art. 75, Sec. 129, Code of 1951, in that it does not assess the value of the property and damage, if any, is not a final, appeal-able judgment, but merely the equivalent of a writ of retorno habendo; and second, that judgment in the replevin suit “could not have determined that title was in defendant Ritter because there was no evidence at any time that he had either title or right of possession.”
We think the judgment in the replevin case was a final judgment and conclusive and binding on Brickley. The general rule is that the action of replevin does not necessarily try the title to the property replevied, as the action is possessory, and unless the title to the property was put in issue in the replevin suit, the defendant in the suit on the bond, (the plaintiff in the replevin suit) may
In Seldner v. Smith, 40 Md. 602, the question was whether a sale of goods was made under such representations as to justify the claim of the vendors that they were entitled to annul the sale and retake the goods. The rebuttal by the defendants was that the goods had been fairly purchased. The Court said: “. . . it appears that title to the goods was put in issue and no evidence was offered by either party, except that which tended to support his title. We are therefore of opinion that under the peculiar circumstances of this replevin case, the verdict and judgment were conclusive as to the want of title of the plaintiffs in the replevin, and that the question of title could not be re-opened in this suit.” Cumberland Coal & Ice Co. v. Tilghman, 13 Md. 74.
An example of the other situation is found in Crabbs v. Koontz, 69 Md. 59, 13 A. 591. There a steam engine and thresher were sold conditionally by Koontz, title to remain in him until the whole purchase money was paid. The condition of the sale not having been complied with, he replevied the property. The Court, sitting without a jury, ruled that Koontz, the plaintiff in replevin, ought to have made demand on the defendant for the return of the engine before resorting to replevin, and, for this reason, judgment was rendered for the defendant. This Court said: “In other words, the Court decided that the defendant was entitled to the possession of the property, until a demand was made by the plaintiff for its return.” This Court further held that the replevin bond, being one of indemnity only, the defendants had the right, in mitiation of damages, to show that the engine and thresher did in fact belong to Koontz, and that the title thereto was not determined in the replevin suit, but
It seems clear that the question of title was definitely at issue and adjudicated in the replevin suit in this ease: The right of possession, as such, was not involved. A declaration filed by Brickley complains that the defendant Ritter “took and unjustly detained the plaintiff’s goods”. Ritter’s pleas were: 1, that he did not wrongfully take and detain the property; 2, that the property in the goods was in the defendant; and 3, that the property in the goods was in Miller & Bradley, Inc. Mr. Poe, in Vol. 1 of Pleading and Practice, Tiffany Ed., Sec. 631, says that the standard pleas in replévin are non cepit “and also the plea of property in’ the defendant, and sometimes also, in a third party. Tliese pleas áre not inconsistent. Under them, the burden is cast upon the plaintiff to prove his own title.” See Burrier v. Cunningham Piano Co., 135 Md. 135, 142, 108 A. 492; Baltimore & Ohio R. Co. v. Rueter, 114 Md. 687, 80 A. 220. Brickley filed a replication, alleging that the property in the goods “was in the plaintiff, John A. Brickley.” Brickley, by his testimony, attempted to meet the burden of proving his title and possession. He testified to much, if not all, as the Court found in the second trial, that he sought to show by his proffer in that trial and he introduced in evidence the contract of June 27, 1949, and the cancellation contract of July 12, 1950. At the conclusion of his testimony, counsel for Ritter offered a' prayer for an instructed verdict, ■ as follows: “The defendant moves in this case that the jury be instructed that the plaintiff has offered no evidence legally sufficient to entitle the plaintiff to recover, for the reason that the plaintiff has not established title to the property replevied and the right to possession”. The Court held that the contract was still in effect at the time the timber was sold, even though it could have been forfeited, (Brickley could have elected to do so) and that with the contract in effect, the Indian Chief had a right to cut the timber and, in fact, did sell the timber to Ritter. As
The appellant says that even if a question of title were in issue in the replevin suit, nevertheless, the judgment is void or is not conclusive because it does not comply with the requirements of Sec. 129 of Art. 75 of the Code of 1951, and so amounts to no more than a writ of retorno habendo, which under the holding of Dermer v. Faunce, 187 Md. 610, 51 A. 2d 76, was not a final order which was appealable. It is plain that the judgment in the replevin suit was in no sense the equivalent of or analogous to return of goods under a writ of retorno habendo. The opinion of the Court conclusively shows that title was finally adjudicated. Sec. 129 of Art. 75 says that whenever in replevin or detinue, there is a judgment in the alternative for the return of chattels or the payment of their value, judgment may be enforced in certain ways, therein set forth, and then provides that “Every judgment in detinue and replevin, and every verdict therein shall ascertain separately the value of the goods and chattels and the damages, if any, for their detention.” There have been several cases construing this section and its effect. In Standard Horseshoe Co. v. O’Brien, 88 Md. 335, 41 A. 898, it was held that under the pro
It was decided long ago that this Court would not go behind a judgment irregular in form where the irregularity was not so fundamental as to render the judgment void, such as lack of jurisdiction, unless a motion in arrest was duly made below. Morgan v. Briscoe, supra; Sasscer v. Walker’s Ex’rs., 5 Gill & Johnson, 102, 110, Cushwa v. Cushwa, supra; Ecker v. First National Bank, 62 Md. 519.
We find that the question of the value of the logs replevied, although not in form agreed upon by the parties, is not actually in substantial dispute between them, and that there is no doubt that the value was proven. In the declaration in the suit on the bond, the value of the logs and the damages claimed is set forth with particularity and itemization. The plaintiff’s mo
We think the judgment below must be affirmed, title having been adjudicated in the first case and value in the second.
The appellant filed a motion in this Court that- the appellees as non-residents be required “to provide security for costs”. It alleged that in the Court below, it made such a motion at the beginning of the trial and that its motion was denied on the ground that it came too late. Since we hold that the Court below committed no error and that the judgment must be affirmed, the appellant is not injured by the refusal of the Court to grant the rule. Under Sec. 9 of Art. 24, Code of 1951, the defendant in
Judgment affirmed with costs.