170 P. 778 | Utah | 1918
Plaintiff brought this action for the replevin of two horses and two blankets which he alleges defendants wrongfully took
Defendants separately demurred to the complaint for want of sufficient facts, and upon the grounds of uncertainty and ambiguity in that the complaint failed to state in what manner the defendants wrongfully went into possession or wrongfully detained the property, or when or where the plaintiff demanded possession of said property. The‘demurrer being overruled, the defendants answered, admitting that the plaintiff was the owner of the property in question, but denied generally all the other allegations of the complaint.
The case was tried by the court without a jury, and judgment was rendered for the plaintiff for the recovery of one of the horses described in the complaint and for damages in the sum of one dollar. Defendants appeal.
The assignments of error relied on in the argument are that the court erred in overruling defendants ’ demurrer and in finding that the property was wrongfully detained, and that there was a proper demand and refusal to deliver the same.
The facts, briefly stated, are as follows: The defendants, F. Hyland and James Hyland, are father and son. Each of them owns a ranch in close proximity one to the other in the vicinity of Terrace, Box Elder County, Utah. . On or about the day mentioned in the complaint, December 22, 1913, two horses, one gray and one bay, strayed into the field on the ranch of F. Hyland, and were taken care of by him in connection with other horses belonging to the ranch. One of the horses in question was covered with a blanket, and the ground was covered with snow. The ownership of the horses was unknown to defendants, and the fact that the horses were estrays was quite generally communicated to the people in the neighborhood. 'The horses were not taken up as estrays or advertised as such as the law provides. Comp. Laws Utah 1907, tit. 3, c. 1, relating to estrays and trespassing animals. The horses remained on the ranch, and in January, 1915, the bay horse died. In October of the same year the plaintiff visited the ranch in search of a team of horses he had lost in
Plaintiff left the ranch without the horses, and suggested at the time that he would place the matter in the hands of the sheriff. James Hyland immediately thereafter wrote to his father in Ogden, informing him of the plaintiff’s demand. His father thereupon wrote to the sheriff of Box Elder County informing him of the circumstances under which the horses came into his possession, and also informed him that his son had communicated to him the demand of the plaintiff for a team of horses, and that, if the same were not delivered, the matter would be left to the court to determine. The letter also informed the sheriff that, if plaintiff “showed up in Brigham,” to tell him to institute suit against the writer. The foregoing is the substance of the material parts of the letter. Shortly after the receipt of this letter by the sheriff this action was commenced to recover possession of the property.
The objections raised by the demurrer are not well taken. Plaintiff alleged in simple and concise language the ownership and value of the property, the wrongful possession by the defendants; the demand by plaintiff, and that defendants still continue to wrongfully detain the property.
It is urged, however, with considerable vigor that, inasmuch as the defendants did not come into possession of the horses wrongfully, a demand by plaintiff for their
It is Undoubtedly elementary doctrine in the law of replevin that, where a person comes lawfully into possession of another’s property, a demand by the person entitled thereto must first be made before an action can be brought for its recovery, unless other facts and circumstances are shown to exist which in law are sufficient to obviate the necessity of a demand. For instance, the attitude of a party concerning the property in dispute may be such as to show conclusively that any demand upon him for possession thereof would be futile and unavailing. In such case it cannot be successfully contended that a demand is necessary before bringing an action. In this case it cannot be denied that plaintiff made a demand on the defendant James Hyland in October, 1915, for a team of horses. James Hyland did not offer to surrender the one horse then on the ranch. He said there was a feed bill against the horses, and referred the plaintiff to F. Hyland, -the other defendant, and then wrote to F. Hyland and informed him of the demand that had been made. F. Hyland, treating this as a demand for a team of horses, wrote the sheriff requesting him to tell the plaintiff to institute a suit against him, the writer of the letter.
It seems to the court that there was a positive demand made on James Hyland for the team which was afterwards treated by F. Hyland as a demand on himself. It is true that the demand was for a team, and not alone for the living horse, but in order for defendants to avail themselves of this point, which, at most, is a technicality without merit, they ought at least to have tendered such portion of the property as was within
Besides this, there is another phase of this question to be considered, and one which, in our judgment, shows this to be a case in which demand for possession of the propetry previous to bringing an" action for its recovery is not required. The statutes of this state, heretofore referred
The assignments of error presented by appellants, in the opinion of the court, are without merit, and should not prevail.
Respondent has submitted cross-assignments of error in which he contends that the trial court erred in ordering judgment against the plaintiff as to the value of the bay
Concerning the value of the bay horse for which respondent contends he was entitled to judgment, it will be remembered that this horse died while in the possession of defendants in January, 1915. Aside from any question as to whether the defendants might or might not be liable for the value of the horse in a proper proceeding seasonably instituted, we are not prepared to hold that' they are liable in the present case. At the time that plaintiff commenced this action he knew that the bay horse was dead and had been dead for nearly a year. He was fully informed of this fact by James Hyland defendant, and other witnesses. He knew that he could not recover possession of the property sued for; for it was not in existence. He knew that part of the property at least could not be recovered in specie. He elected to pursue a form of action which, as far as this particular horse is concerned, was not available. He brought his action in re-plevin, or in claim and delivery, as it is called in our law, and alleged in his complaint, among other things, “that said defendants still unlawfully and wrongfully withhold and detain said personal property, ’ ’ a statement which, as concerns the horse in question, plaintiff knew was untrue in fact, and could not be sustained by the evidence. We do not believe that there is even a fiction of the law under which respondent can justly recover for the value of the bay horse in this proceeding. The doctrine at common-law, as announced in Shinn on Replevin, section 40, is as follows:
"It is a general principle of the common law of replevin that the action cannot be maintained against one who is not at the time the action is begun in the possession of the chattels sought to be recovered. Replevin being an action to obtain possession, it necessarily follows that the defendant must have possession of the thing sought to be obtained by the plaintiff. This is manifestly true because a defendant not in possession of an article could not be adjudged to make return of that article. Therefore, if the defendant has not the actual or constructive possession and control of the chattel sought to be recovered, the action of replevin cannot be maintained.”
The testimony shows that during the time the horses were in the possession of the defendants they used them on a few occasions in and about their work. For this use respondent contends he was entitled to judgment for damages, and that the court erred in limiting the damages to one
"The damages for the use of the property cannot be recovered unless the party shows that the property has a usable value, and that he was in a position to use it, and was prevented from doing so by the wrongful detention of his adversary.”
In view of the insufficiency of the evidence upon which to base a finding for substantial damages, we do not feel authorized to hold that the court erred in finding nominal damages only.
For the foregoing reasons respondent’s cross-assignments of error are not sustained, and the judgment of the trial court is affirmed; respondent to recover costs.