15 S.D. 425 | S.D. | 1902
This is an action upon an attachment bond. Judgment was. rendered for the defendants, and the plaintiffs appeal.
The plaintiffs alleged that they were the owners of certain personal property; that the attachment proceedings had been dismissed; that they had sustained damages by reason of the attachment of the property — by the loss of the use of the same, $2,500; for money expended in the employment of counsel, $100; for the loss of time and money in their efforts to obtain the possession of the same, $100; damages by the judgment against them _ for costs, $100. The' defendants set out, among other defenses, the proceedings and judgment in a certain action, wherein the present plaintiffs were defendants and one Warrick was plaintiff, in bar to this action. To this defense the plaintiffs demurred on the grounds that it did not state facts sufficient to constitute a defense to the action. The demurrer was overruled, with $20 costs in favor of the defendants. The appeal is taken from the judgment, with notice therein that plaintiffs'would ask a review of the order overruling the demurrer and assessing them with costs.
A question of practice was raised by the respondents, by reason of the fact that the plaintiffs offered no evidence — their attorney announcing that he stood upon the demurrer to the defense demurred to — and permitted judgment to be entered for the defendants. But in View of the fact that the ruling of the court upon the demurrer was fully discussed by counsel in their respective briefs, we shall proceed to consider the order ef the court made upon the demurrer, without discussing the question of practice raised.
The first question which naturally presents itself is, what title did Warrick have, and what title did the Murphys acquire under bim by payment of the judgment set out in the answer?- In this jurisdiction the title to personal property is not vested in the mortgagee by the mortgage, but remains in the mortgagor until after a foreclosure and sale of the mortgaged property. The title of Warrick, therefore, was simply the right to the possession for the purpose of foreclosure and sale of the property. The Murphys, by paying the judgment recovered against them, only succeeded to the rights of Warrick, and thereby acquired his right of possession, and were subrogated to his right to foreclose the mortgage as against Jencks, Johnson & Co.; but the legal title to the property still remained in Jencks, Johnson & Co. This being so, at the time the attachment proceedings were commenced Jencks, Johnson & Co., defendants in the attachment suit, and plaintiffs here, still being the holders of the legal title to the property, had an at--tachable interest therein, which might be available upon the payment of the Warrick mortgage. Whether or not the Murphy attachment was properly levied upon the property does not affirmatively appear, and need not now be considered. It is quite clear, however, that when the attachment proceedings were dismissed, and judgment rendered in favor of Jencks, Johnson & Co. in that -action, a right of action on the undertaking given by the 'Murphys immediately accrued to Jencks, Johnson & Co., to recover such -damages -as they might have sustained by reason of the attach
These views necessarily lead to the conclusion that the learned circuit court was in error in holding that the defense demurred to