273 N.W. 378 | S.D. | 1937
This action of malicious prosecution was brought by Otto H. Roberts, appellant against Louise Mooney and Norman B. Bartlett, respondents. At the close of the testimony, the learned trial court granted the motion of the defendants for a directed verdict. The appeal is from the judgment and from the order denying a motion for a new trial. Under a single assignment of error, appellant contends that the court erred in directing the verdict.
In the case of Just v. Martin Brothers Company,
We analyze the sufficiency of the evidence with reference to one of these elements and state the material facts in connection with our discussion.
Was the evidence sufficient to require the court to submit the issue of probable cause to the jury? Otto H. Roberts was the tenant of the defendant Louise Mooney on certain farming land. In payment of his rent, Roberts executed and delivered to Mrs. Mooney his promissory note for $650, and as security therefor executed and delivered to her a chattel mortgage upon the crops to be grown upon said land. Thereafter, Mrs. Mooney brought an action in claim and delivery against Roberts wherein she claimed the possession of crops grown upon the land for the purpose *289 of foreclosing her chattel mortgage. Respondent Bartlett represented her as attorney in that action at its inception. A bond in claim and delivery was delivered to the sheriff, and the sheriff took possession of the crops in question. Thereafter, in accordance with the provisions of section 2416, Rev. Code of 1919, Roberts furnished the sheriff with a redelivery bond and the property was returned to him. Thereafter, and during the pendency of the action in claim and delivery, the appellant Roberts sold and disposed of the crops in question. After Roberts had sold the mortgaged property, and upon complaint of Mrs. Mooney's husband, Roberts was charged with the offense of disposing of mortgaged personal property, and was arrested. Circumstances are evidenced indicating that Mrs. Mooney and Bartlett were the instigators of the criminal complaint. Roberts claims, and for the purpose of dealing with the element of probable cause we assume, that there was a bona fide termination of the criminal charge favorable to Roberts. The fact is that the record shows no more than a quashing of the information on the ground that no preliminary hearing had been held under the complaint.
Roberts contends that the above-described redelivery bond in claim and delivery, under which possession of the property in question was redelivered to him by the sheriff, replaced the chattel mortgage held by Mrs. Mooney, that thereafter he was free to dispose of the property as he saw fit, that Mrs. Mooney and Bartlett were fully conversant with the facts and the law in the premises, and that therefore they could not have concluded that there was probable cause to believe that Roberts had committed the crime of disposing of mortgaged property. This contention of appellant's is predicated principally upon the holding of the Supreme Court of our sister state, North Dakota, in the case of Union National Bank of Oshkosh v. Moline, Milburn Stoddard Co. et al.,
Appellant quotes similar language from the following authorities: Republic State Co. v. Brown, Sheriff,
Notwithstanding our abiding respect for the learned courts that have adopted the foregoing views, we are convinced that such a construction distorts the provisional remedy of claim and delivery and violates the rights of the lienholder.
[1, 2] Claim and delivery is a provisional remedy under our law. Section 2382, Rev. Code of 1919. It may be used in connection with an action to recover the possession of personal property for the purpose of placing the property in the constructive custody of the court for delivery to the prevailing litigant in accordance with the terms of the judgment ultimately rendered in the action. The possession thus permitted during the pendency of the action is temporary in character. The undertaking of the plaintiff or the defendant, as the case may be, is respectively to "return" or "deliver" the property according to the judgment. Sections 2414-2416, Rev. Code of 1919. The judgment is for "possession" or "return" of the property and only may be for its value if "delivery" or "return" thereof cannot be had. Section 2566, Rev. Code of 1919. Indisputably the Legislature did not intend that it should be optional with the holder of the provisional possession whether he should deliver the property or pay its value. The statutes contain no words indicating an intention that the provisional remedy should in any way disturb existing rights, titles, or *291 interests in the property, or that it should create new or different rights, titles, or interests therein.
[3, 4] That the property so seized remains in the custody of the court during the pendency of the action and may not be sold without the consent of its owner, as contradistinguished from a lienholder, is established by sound reason and the overwhelming weight of authority. Steele v. Marlborough Hall Corporation,
The authorities urged upon us base their conclusions upon practical considerations. They do not purport to have found words in applicable statutes rendering such a construction admissible, nor do they claim authoritative background for their views. Based upon the premise that a lienholder is only interested in security, they hasten to the conclusion that the bond offers adequate security. This reasoning fails to place sufficient emphasis upon the fact that the lienholder is primarily interested in prompt payment. That a bond all too frequently but furnishes the obligee with the necessity of instituting further litigation is the lesson of experience. Experience further teaches that by the time the obligee has reduced his claim to judgment he frequently finds that intervening disaster has rendered the sureties insolvent. In most cases, payment is realized through the enforcement of the bond. In no case, however, is the lienholder as adequately secured, and as sure of prompt payment through the single instrumentality of the bond, as he is through *292 the lien on the property plus the bond. There is no injustice to the adverse party in requiring additional security as the price of delay, cost, and possible damage. The lienholder has secured his lien through contract or by taking advantage of some statutory procedure. Other rights should not be substituted for those he has obtained, without his consent. Certainly his situation should not be changed by judicial fiat.
[5, 6] We conclude that the claim and delivery bond did not disturb the lien of the mortgage held by Mrs. Mooney, and that the admissions of Roberts established the fact that he had unlawfully disposed of the mortgaged property. Therefore the defendants had probable cause to believe that Roberts had committed the offense charged, and the proof in the instant case of such probable cause constituted a complete defense irrespective of the intentions which prompted the complaint. 38 C.J. § 26, p. 400.
The judgment and order of the trial court are affirmed.
All the Judges concur.