20 S.D. 254 | S.D. | 1905
This appeal is from a judgment 'and order overruling a motion for a new trial in an action to recovér possession of two mares owned by plaintiff Longerbeam, subject to a mortgage held by his coplaintiff, the J. I. Case Threshing Machine Company. While, in the absence of a demurrer distinctly specifying that separate causes of action were improperly united in the complaint, the question may be disregarded pursuant to section 122 of the Revised Code of Civil Procedure, it is plain that both the owner and the mortgagee had an interest in the subject of action, and their rejoinder as parties plaintiff was wholly immaterial to defendant, .although the possessory right to the property was exclusively in the mortgagor at the time of its wrongful taking and detention. Lieberman, Loveman & O’Brien v. Clark, 85 S. W. 258. Manifestly there was no misjoinder, as contended by counsel for appellant, because the seizure of the mortgaged chattels, even if under attachment or execution, constituted an infringement on the rights of the mortgagee, entitling him to come into the action for the purpose of asserting his lien. Miller v. Campbell Commission Co., 74 Pac. 507.
Whether the chattels in dispute were taken from the possession of the owner by virtue of legal process or by the defendant acting as a mere trespasser does not affirmatively appear, nor was any justification for the seizure attempted. The only defense offered at the trial was the assertion that such property was not in
Conformable to this clear preponderance of competent testimony, and in direct response to a special interrogatory, the jury was fully justified in finding that the action was commenced before-the defendant had sold the property, and as the case stood at the conclusion of all the evidence it was not erroneous to instruct the-jury as follows: “It is the law that such actions must be brought while the defendant is in the possession of the property. If the defendant, before bringing the action for the possession of the property, has sold or disposed of the property, then he is not in a position to return the identical property, and this action would not lie. * * *■ If you find, however, that the summons was served before-
. Neither in( the admission of evidence at the. tr.ial nor, ,in,.its„§ubv mission, to the jury by the court are we able to discover any errors of law:., and.the judgment appealed from is affirmed. •ih.l V •! t,... .'.V v ru. .1 •,( mv •!-. in-.-"