15 Or. 484 | Or. | 1887
This is an action of replevin. The property sought to be recovered is fifty-five thousand feet of lumber piled in the mill and mill-yard at Gurney’s Mill,, in Douglas County, Oregon. The lumber was distributed in from twelve to fifteen separate piles, and each lot is particularly described in the complaint, and the entire quantity is alleged to be of the value of five hundred dollars. The defendants allege in their answer, after denying the taking as wrongful, and denying each of the other allegations specifically, that G. A. Taylor at said time was sheriff of Douglas County, Oregon, and the other defendant was his deputy; that at said time one William Trask was the owner of about thirteen thousand feet of said lumber, and Voltair Gurney was the owner of the residue. The answer then alleges facts showing a seizure of Voltair Gurney’s interest in all of said lumber, under and by virtue of an execution against him and G. W. and R. M. Gurney, issued out of the Circuit Court of Douglas County, Oregon, in favor of William Trask, for $117.50, with interest and costs. The answer demanded a return of the whole of said property to the defendants, which had been replevied from them soon after said action was commenced. The reply denied that either Trask or Gurney owned any part of said lumber. Upon a trial before a jury, the following vei - diet was returned: “We the jury in the above-entitled cause find that the defendants are entitled to the following described property in the plaintiffs’ complaint described, to wit: (3-5) Three fifths of each and every pile or clear of lumber described in plaintiffs’ complaint, or its value thereof, and remainder belongs to the plaintiffs.”
1. The first inquiry to which our attention must be directed is whether the verdict was sufficient to enable the court to render any judgment in the cause in favor of either party. Hill’s Code, section 214, prescribes, in substance, what the verdict shall contain in this class of actions as follows: “ In an action for the recovery of specific personal property, if the property has 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,” etc.
In this action the plaintiffs claimed to be the owners, and to have the right to .the possession of the entire property in controversy; but it appears from the verdict of the jury that they were only entitled to the possession of an undivided part thereof. This part had not been separated or severed from the entire lots
2. But this verdict is insufficient for another reason. By the complaint the plaintiffs claimed to be the owners of the lumber in coutroversy, as well as to be entitled to its possession. The verdict is silent as to the ownership of the projierty, and that issue remains undetermined. In such case no judgment can be rendered for the plaintiffs. (Bemus v. Beekman, 3 Wend. 668; Emmons v. Dowe, 2 Wis. 235; Heeron v. Beckwith, 1 Wis. 27; Beemis v. Wylie, 19 Wis. 318; Appleton v. Barrett, 22 Wis. 568; Machette v. Wanless, 1 Colo. 225.)
3. But if the verdict had been in proper form, the judgment is erroneous. By the express provisions of the Code (§ 214, supra), the plaintiff is only entitled to the alternative judgment if the property has not been delivered to him. If during the progress of the action it had been delivered to him, and the finding is in his favor as to the title to the property when that is in issue, and the right to the possession, the judgment is that he recover the particular property, and in a proper case his costs. The property being then in his possession, and his right and title conclusively settled by the judgment, there is no occa
4. Inasmuch as there must be a new trial in this case, I think proper to add that we must not be understood as holding that in an action of replevin the plaintiff may not recover some of the separate articles or distinct parcels of the property in' controversy, and the defendant prevail as to others; but they must be separate and distinct articles or parcels, capable of description and identification, and not undivided portions of separate or entire and distinct lots. (Pratt v. Tucker, 67 Ill. 346; Williams v. Beede, 15 N. H. 483; O’Keefe v. Kellogg, 15 Ill. 347; Poor v. Woodburn, 25 Vt. 234; Powell v. Hinsdale, 5 Mass. 342; Edelen v. Thompson, 2 Har. & G. 31.)
5. Upon this appeal counsel discussed the question of costs to some extent, where the jury find for the plaintiff as to a portion of the property and for the defendant as to another portion. In the absence of a statute fixing the rule, the authorities seem to hold that in such case it would be the duty of the court to apportion the costs equitably between the parties. (Powell v. Hinsdale, supra; Poor v. Woodburn, supra); but our statute provides in what cases parties recover costs. (Hill’s Code, § 549.) Under that section costs are allowed to the plaintiff, of course, upon a judgment in his favor, among other cases, in an action for the recovery of personal property; but in such action, if the plaintiff recover property, or the value thereof, as established on the trial, and damages for the detention of the same, in all less than fifty dollars, he shall recover no more costs and disbursements than the sum of such value and damages. Section 551 of Hill’s Code allows costs to the defendant, of course, in the actions enumerated in section 549, “unless the plaintiff be entitled to costs therein.” Under these sections there is no room for a division of costs. They belong of right to one party or the other, to be determined by the court as the facts appear.
Let the judgment be reversed, and the cause remanded to the court below for a new trial.