199 P. 477 | Nev. | 1921
Lead Opinion
By the Court,
This is an appeal by defendants Jurich, McDonald, and Smithson from an order denying a new trial and from a judgment against them.
The record is the same as that in the case of Studebaker Brothers Company of Utah v. Witcher, et al. (No. 2399) 44 Nev. 442, 195 Pac. 334, and the points
On April 3, 1917, one Flamm, a resident of Salt Lake City, entered into a contract with respondent for the purchase of an automobile, agreeing to pay therefor a fixed sum, in installments. It was agreed that title to the car should remain in respondent until full payment of the purchase price, and that the car should not be removed from the state. Prior to full payment being made, Flamm took the car out of the State of Utah and into the State of Nevada. After arriving in Nevada with the car, Flamm was sued and the car attached. In due course of time a judgment was rendered against him, and the car sold to satisfy the judgment; defendant Witcher becoming the purchaser thereof.
Respondent brought this action of replevin to recover possession of the car, claiming ownership thereof. All of the defendants resisted the action, upon the theory that the contract between plaintiff and Flamm was a mere chattel mortgage, and that, having no notice thereof, Witcher was an innocent purchaser for value, and that he and those claiming through him should be protécted. We decided adversely to this contention in the Witcher case, supra, and that decision is binding upon this appeal. We adhere to all that was said therein.
“ Tf no demand is made, and the original possession of the defendant be lawful, and he tenders the property to the plaintiff, and upon its delivery by proper answer or plea discharges the action, costs should be taxed against the plaintiff. If the defendant does not pursue this course, and contests the action, the writ will be sufficient demand, and defending the suit a refusal’—citing Chipman v. McDonald, 9 Kan. App. 882, 57 Pac. 252; Dearing v. Ford, 13 Smedes & M. (Miss.) 274; 24 Am. & Eng. Ency. Law (2d ed.) 510; footnotes 4 and 6, Shinn on Replevin, sec. 316; Cobbey on Replevin, sec. 450.”
This rule is in line with the policy of this state as declared by our legislature, which has enacted:
“The defendant may at any time before trial or*473 judgment, serve upon the plaintiff an offer to allow judgment to be taken against him for the * * * property, or to the effect therein specified. * * * if the plaintiff fail to obtain a more favorable judgment he shall not recover costs, but shall pay the defendant’s costs from the time of the offer.” Rev. Laws, 5265.
If defendants had claimed no right to the automobile superior to that of the plaintiff, they could have protected themselves by proceeding under this’ statute. But they do not come within the statute. They are not persons intended to be protected by it, for the reason that they defended, asserting a superior right tq that of the plaintiff.
The second contention is that the appellants are mere agents of Witcher, and that a different rule should apply to them than to him. Whatever may be the correct rule of law applicable where an agent is sued alone while in the exclusive possession of property, as such agent, we are not called upon to determine. Such is not this case. The facts of this case are not only unusual but unique, to say the least. Flamm bought the car April 2, 1917. On June 30 it was sold under execution. The undisputed testimony is that on July 21 the car.was red and not in need of repainting. When next seen on August 29 by a representative of respondent (less than three months after the purchase), it had been painted green. On the date last mentioned two of the appellants disclaimed ownership of the car, one of them saying it was owned by some fellows at the “flat,” but that he had an interest in it. The trial court found that at the time of and prior to the bringing of the action, and at the time of the trial, the defendants, all of them, “did unjustly hold and detain” the possession of the car. The fact that Smithson and McDonald were in possession of the car on August 29 is consistent with the theory of agency. It may also be said that an inference may be drawn that the possession of the car was being juggled for the purpose of making its discovery and recovery impossible. We think, too,
For the reasons given, the judgment is affirmed.
Rehearing
On Petition for Rehearing
By the Court,
A petition for rehearing has been filed, upon the ground that since we expressed an adherence in our former opinion to the views stated in Studebaker Brothers, Company of Utah v. Witcher, et al. (No. 2399), 44 Nev. 442, 195 Pac. 334, we should have ordered a modification of the judgment, as in that case. If such an order be necessary to protect the appellants, the granting of a rehearing is not essential to that end. Hence the petition is denied, with leave to apply within ten days from service of a copy hereof for a modification of the order.
It is so ordered.