145 P. 281 | Or. | 1915
delivered the opinion of the court.
“In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof, and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property.”
Further, in Section 198, L. O. L., it is declared that in such actions—
“if the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.”
In passing, we note that the pleadings in this action do not disclose whether the defendant in the
The plaintiff argues that, the judgment dismissing the action having been entered, ■ that constituted a breach of the undertaking; but all the authorities cited for her on this subject are where the replevin action was either dismissed on the motion of the plaintiff or by tjie court for want of prosecution. In none of them was there a trial on the merits of the action, nor did the case go to the verdict of a jury in any instance.
In the replevin action here involved there was an opportunity offered by Sections 153 and 198, L. O. L., to settle the status of the property and the amount of damages to be assessed against the plaintiff there if such was the right adjudication of the issue. The judgment there is conclusive of the rights of the parties on the merits of the action, and while that decision stands we cannot go behind it and determine questions
The defendants requested the court substantially to withdraw from the jury any question' as to whether or not the bond was complied with in the prosecution of said action and the return of the property, and to charge them that the defendants have fulfilled the bond in these two conditions; hut the court refused the request. On the contrary, the judge instructed the jury as follows:
*286 “The term 'prosecution of the action’ does not mean merely a bringing the case on for trial; nor does it mean the trial of the cause. It means, gentlemen of the jury, a prosecution with effect, a successful prosecution, a trial of a cause wherein the person bringing the action prevails. And if you find from the evidence that defendant herein, John E. Kirkland, did not carry his action against D. S. Smith to a successful determination, and that the amount of $640 has not been paid, then you would be justified in finding that the condition of this bond in this particular has been broken, and you should bring in a verdict for plaintiff in the sum of $640.
' ‘ The payment of the judgment of costs herein is not a bar to this action to recover the amount mentioned in the bond. The bond was given for three purposes at least: To successfully prosecute the action brought by Kirkland against Smith, which is in evidence here before you; to redeliver the property in the event the case was decided against Kirkland; and to pay the costs that were adjudged against Kirkland. The payment of the costs was a compliance with that term of the bond, but was not a compliance or a fulfillment of the other two terms of the undertaking. ’ ’
There has never been an adjudication for the return of the property. The defendants here did not delay the prosecution of the action, but carried it to final judgment. No situation is disclosed by the case which amounts to a violation of their undertaking. The following precedents illustrate the soundness of this conclusion: Howard v. Wyatt, 145 Ky. 424 (140 S. W. 655); Daniels v. Mansbridge, 4 Ind. Ter. 104 (69 S. W. 815); Badlam v. Tucker, 18 Mass. (1 Pick.) 284; Ihrig v. Bussell, 68 Wash. 70 (122 Pac. 609); Citizens’ State Bank v. Morse, 60 Kan. 526 (57 Pac. 116); Vallandingham v. Ray, 128 Ky. 506 (108 S. W. 896); Lewis v. McNary, 38 Or. 116 (62 Pac. 897).