106 N.W. 564 | N.D. | 1906
The plaintiff in this action was the defendant in an action in claim and delivery brought by the Konatz Saddlery Company in justice court. The other defendants were sureties on the undertaking given by the plaintiff in that action. The present defendant, who was plaintiff in the replevin case, recovered a judgment in that court for the possession of the property involved in that suit. The defendant therein appealed to the district court on questions of law alone, and recovered a judgment that the judgment appealed from was void for the reason that the justice adjourned the,case at the close of the trial for an indefinite period and finally entered judgment, in the absence of the parties, at a’ place other than the place where the trial was had, and four and a half miles therefrom. The judgment appealed from was vacated and set aside by the district court, on the ground that the justice lost jurisdiction to enter judgment. The plaintiff brings this action to recover damages in the sum of $250 for a breach of the undertaking; that being alleged to be the value of the property taken which defendant refused to return on demand.
The condition of the undertaking alleged to have been broken by the defendant is: “That said plaintiff shall prosecute said action with effect,” etc. The contention is that there was a breach of the condition of the bond which renders the defendants liable for the value of the property taken and not returned. In other words, it is contended that there was no prosecution of the action. The complaint sets forth that the plaintiff was the owner of the property taken, and had the same “in his possession and under his control.” It also alleges the fact of the commencement of the action in justice court, and alleges that the defendant claimed the right to the possession of the property involved therein, “claiming and alleging a special property therein.” The defendants answered, and deny that the Konatz Saddlery Company did not prosecute the replevin action, and sets forth its right to the possession of that property by virtue of having a chattel mortgage thereon on which payment was past due, and that it has legally foreclosed said mortgage and sold the property at public sale under the power of sale contained in the mortgage.
Two questions arise upon the record: (1) Was the action in, justice court prosecuted by the plaintiff so as to exempt it from liability under that condition of the bond? (2) Did the trial court err in excluding evidence of the value of the property taken in jus
The prosecution of the action, within the meaning of the statute, is to continue the proceedings to trial and to a determination of, the issues by final judgment. The condition of the undertaking is complied with by continuing the proceedings to judgment on the merits, although not in plaintiff’s favor. If the action had been prosecuted to judgment on the merits, the condition of the undertaking would be fulfilled, although the defendant had prevailed. If the action be prosecuted to judgment on the merits, and the defendant recover judgment, that judgment should provide for a return of the property to the defendant and for payment of such damages as had been awarded on the trial, and costs. If the action be prosecuted by the plaintiff to a determination of the issues in de
The case cited by respondent, Kidder v. Merryhew, 32 Mich. 470, is not in point." In that case the defendant was absolved from liability for the reason that the property was not shown to have been delivered or detained by him. What is there said concerning the liability of the defendant when occurring through the fault of the justice of the peace was not involved in the case, and therefore unnecessary. There are many authorities that define what is meant by “prosecuting an action,” under statutes like our own. In Alderman v| Roesel, 52 S. C. 165, 29 S. E. 386, the court said: “But whatever the explanation of the sheriff’s conduct, it was Roesel’s duty under his bond to prosecute for the unlawful detention of said property up to the time of said release — to have carried the cause to final effect; and failing in this, he has rendered himself and surety liable for breach of that condition.” In Marryott v. Young, 33 N. J. Law, 336, the court said: “But this position overlooks the first stipulation in the condition, which is that the plaintff in certiorari will prosecute the writ in the court above. This is a substantive term, quite independent of those that follow. Nor is this a stipulation which can be satisfied, as was suggested on the argument, by proof that the writ was returned to the court above, for that is but one of the series of acts which go to make up the prosecution of the writ. The meaning of this
The remaining question is easily determined. A competent witness was asked as to the value of the property taken and detained, and, on objection, was not permitted to answer. The value of the property was a material issue under the pleadings. The action was brought for damages arising out of the breach of a condition of the bond, and the damages were alleged to be the value of the property taken. The value of the property was therefore a necessary element of plaintiff’s damages. The defendant admitted plaintiff’s former ownership of the property, but pleaded that plaintiff’s rights had been extinguished by a foreclosure under the power of sale of a valid chattel mortgage on the property held by the defendant. The burden of proving a valid lien and a foreclosure of it rested on the defendant. The plaintiff was entitled to recover, as damages, the value of the property, unless defendant established the defense pleaded. If there was no valid foreclosure but a valid mortgage, the plaintiff would recover the difference between the value of the property and the amount due on plaintiff’s lien. Lovejoy v. Bank, 5 N. D. 623, 67 N. W. 956. If there was no valid lien the plaintiff would recover the value of the property as damages. Cobbey on Replevin, section 1352; Shinn on Replevin, section 829; Pearl v. Garlock, 1 Mich. 419, 28 N. W. 155, 1 Am. St. Rep. 603.
The judgment is reversed, and the cause remanded for further proceedings according to law. '