30 Colo. 186 | Colo. | 1902
delivered the opinion of the court.
It appears from the record that H. C. Wood-worth and H. A. Woodworth, on the 20th of November, 1894, held a judgment against Lewis C. Rockwell for the sum of $1,202, and that upon the 15th of November, 1894, they caused an execution to be issued and directed the sheriff to levy upon the law library and bookcases of said Rockwell; that the sheriff refused to make the levy, and that the Woodworths gave a bond to the sheriff to indemnify him, and that subsequently the sheriff did levy upon the books and bookcases. That prior to this time Rockwell had executed a chattel mortgage upon the same property to secure a note given to Julia F. Gorsline, and that after the property was levied upon by the sheriff, Julia F. Gorsline began her suit in replevin in the district court of Arapahoe county against the sheriff. That the sheriff executed the statutory bond for the retention of the property, with the Woodworths as sureties, and shortly afterwards
Demurrer was interposed to this answer, and the demurrer was sustained; the court stating, in answer to the application of counsel for defendants for his reasons for sustaining the demurrer to the answer and amendment thereto, that the answer and amended answer could not be sustained as a bar to the plaintiff’s action, because the court could not hold that- the plaintiff was, under the law, compelled to receive back property, goods and chattels that had been the subject-matter of litigation in the replevin suit mentioned in the complaint, in said answer and amendment thereto. It was also alleged, in the answer that they, the said defendants,. conducted the
Before the trial, the death of the defendant Henry C. Woodworth being suggested, the cause as to said Henry C. Woodworth was dismissed at' the costs of the plaintiff.
Upon the trial, the testimony of Lewis C. Rockwell and of John Q. Charles] given in the replevin suit, was read; it appearing that the said witnesses were deceased.
The court gave the following instruction to the jury;
“Tour verdict should be for the - plaintiff, in whatever sum you find the value of these goods and chattels to have been on the 2nd day of December, 1894;' and in estimating the damages plaintiff is entitled to recover, based' upon that value so found by you, you may add' thereto a sum equivalent to inter- • est at eight per cent, per annum from the 2nd day of December, 1894, as damages, and may make up your verdict based upon the two items. ’ ’
The defendant appealed to this court..
The questions for us to determine are whether thé rulings of the court upon the demurrers, on the admission of the testimony of-'Lewis C. Rockwell and J. Q. Charles, and in overruling the exception ■ to the foregoing instruction were correct. It is con
We are satisfied thht the judgment in the replevin suit determines, as against all parties and privies, the right to the possession of the property; and that, as the defendant in this suit was a privy to the replevin suit, he is bound by it. The appellant insists that when the plaintiff brought her suit in replevin for the recovery of the goods and procured a judgment for the possession of the goods or for the value thereof in case a delivery could not be had, that she elected to obtain a return of the goods, and when they were offered to her that she should have accepted them, and having failed and refused to accept them, she should not be permitted to .maintain her action; that the tender of the goods was, in effect, a satisfaction of the judgment.
It is undoubtedly the rule that one may not. maintain successive inconsistent actions. And many authorities are cited by the appellant showing what actions are held to be inconsistent.
In Terry v. Munger, 24 N. E. 272, it is held thaí one cannot, after bringing suit upon an implied contract for the sale of goods, maintain another action against other wrongdoers for conversion.
In Daniel v. Smith, 15 Ill. App. 339, it is held that after one has treated a transaction as a valid sale of goods, he cannot afterwards maintain trover for the conversion.
In Parker v. Panhandle Nat. Bank, 11 Tex. Civ. Ct. App. 702, it is held that a mortgagee, having, intervened- and procured a judgment for the proceeds of a sale of goods upon which he held a mortgage, waived the right to sue for a conversion.
In Karr v. Borston, 24 Ill. 580, it is held that “if the plaintiff selected the form of action in which he was not entitled to recover vindictive damages, he must be content with the remedy which that form of action has afforded. The pleas aver that he recovered all thé goods taken.”
Substantially the same ruling was made in Savage v. French, 13 Ill. App. 17; Hite v. Long, 18 Am. Dec. 719; Parker v. Hall, 55 Me. 362.
In Baumann v. Jefferson, 23 N. Y. Supp. 685, it is held that one may not sue successively in conversion and replevin; but in the case of Russell v. McCall, 141 N. Y. 437, Justice Peckham, in a review of the authorities which hold that inconsistent actionscannot be maintained, says: “In all the cases cited there • is an element of inconsistency involved in which the plaintiff seeks to occupy with reference to the same transaction and upon the same facts a position which is antagonistic to the one already taken by him. He took no position, proved no fact, asked for no relief, in the- first case which is in any way inconsistent with the position he now assumes, unless
The case of Manker v. Sine, 47 Neb. 736, is relied upon by the appellant to support his contention that a tender of the goods is the equivalent of the satisfaction of the judgment. An alternative judgment having been rendered in. a replevin suit against the plaintiff for the return of the property or its value, the plaintiff tendered the goods and the amount of damages and costs, and upon the tender being refused, filed his motion in the district court by -which he sought to have the alternative judgment satisfied. The .court, upon the hearing of the motion, found “that the plaintiff, after the judgment.was rendered upon the mandate from the supreme court in the cause, tendered to defendant the property replevied in this cause, and made a tender at the place where said property was taken from the defendant under the writ of replevin, and that plaintiff offered to return said property to'defendant and that plaintiff has made a sufficient tender, but the court being of the opinion that there is no authority in £his proceeding to cancel the alternative judgment, refused to cancel the alternative judgment. ”
The supreme court said:' ‘ ‘ The finding being in favor of the plaintiff as to the alleged tender of the property # * * _ our investigation is confined to a single question of practice, viz., whether the judgment defendant may i» such case proceed in -a summary manner by motion for the satisfaction of a judgment against- him, or whether his remedy is by bill in equity or other appropriate action. The plaintiff in'the case at bar has, according to the finding of the district court, satisfied the judgment by a return .of the property replevied. True, it may be inferred ■from the record that the defendant, for reasons not disclosed; refused to receive the property when re
It seems that upon the trial of this case judgment was rendered in favor of the defendant for the "value of the goods taken under the writ, and upon appeal by the plaintiff the supreme court reversed , the judgment because it was not. in the alternative, and directed an alternative judgment to be rendered. Upon the rendition of the judgment, plaintiff made a sufficient tender of the property. In the case we have before us, the defendant retained the property until after the determination of the casé in the court of appeals, nearly four years; and, moreover, the suit is not against the defendant in the replevin suit, but against another person — a joint trespasser.
In an exhaustive opinion by Justice Miller, reported in 3 Wall. 1, the "United States supreme court held:
1. That the defendant by giving a bond of indemnity to the sheriff, thereby became liable as joint trespasser with him under the attachment.
2. That nothing short of satisfaction, or its equivalent, can make a good plea of former judgment in trespass, offered as a bar in an action against another joint trespasser, who was not a party to the first judgment.
3. That the judgment against the sheriff as a trespasser is conclusive against those who furnished
In the case cited, Lovejoy & Co. executed a bond indemnifying the sheriff, who then proceeded' to sell the attached property. Murray then sued the sheriff. The suit against the sheriff was defended by counsel paid by Lovejoy & Co. Murray recovered judgment against the sheriff for about $6,000; there was paid thereon the sum of about $800. Suit was then brought by Murray against Lovejoy & Co. and the plaintiffs recovered judgment for the amount recovered against the sheriff less the amount paid. Many authorities are reviewed by Justice Miller; and the law as announced by him is undoubtedly the prevailing rule in America. Applying it to the case at bar, the decision is authority for holding, as we do:
1. That the Woodworths, by giving a bond of indemnity to the sheriff, became liable with him as joint 'trespassers for the wrongful seizure of the goods of Julia F. Gorsline.
2. That the mere judgment against the sheriff is not a bar to the action against the Woodworths.
3. That the judgment against the sheriff is conclusive against the Woodworths.
But the appellant, admitting, as he does, the correctness of the opinion cited, insists that if the Woodworths were bound by the suit against the sheriff, Mrs. Gorsline was also bound; and that the judgment in replevin, followed, as it was, by a tender of the goods, settled the controversy. We cannot agree with counsel. The Woodworths were not parties to the replevin suit; an execution could not have been issued against their property. By voluntarily indemnifying the sheriff and defending the suit against him, they did not deprive the plaintiff of the right to sue them as trespassers. She elected to sue the sheriff upon his separate liability, and the recovery of
The replevin suit was begun in December, 1894; on March 15, 1898, the tender was made. During all of this time except a month or two, when they were in the hands_ of the sheriff, the goods have been in the possession of the defendant. Whatever the rule may be in cases where there is only one trespasser, or in cases where the defendant tenders the goods' in response to a demand, or in compliance with the terms of a judgment, we are satisfied that the plaintiff in a replevin suit is not bound to accept a tender of the goods at the termination of long litigation, in satisfaction of his judgment, in cases where he has the right to bring other suits against other trespassers.
The case of Blann v. Crocheron, 20 Ala. 330, and cited by Mr. Justice Miller in the case of Lovjoy v. Murray, supra, held that when two persons jointly commit a trespass, the injured party may sue them severally, yet he can have but one satisfaction; and when separate judgments are recovered, he must elect on which recovery he will seek it.’ A plea setting forth a former recovery against a co-trespasser and a voluntary payment of the damages and costs to the clerk in open court, by the defendant to that judgment, without averring that the plaintiff accepted such payment in satisfaction of his recovery, is bad on demurrer.
Upon this authority, therefore, it would- seem that until the plaintiff accepts satisfaction of a judgment which she has obtained against the sheriff for the possession of the goods, a mere tender of satisfaction is no bar to this action in trover.
If then, the action brought against the sheriff
It is said in Russell v. McCall, supra, that “When, subsequent to the first action, the plaintiff commences one against all of the wrongdoers, he has not lost the right to maintain it by reason of an election to waive such remedy, but has lost it in their case only for the reason that he has no right to vex them twice for the same cause of action. ’ ’
We are of the opinion that the action of replevin we have under consideration and the action of trover now before us are not inconsistent. There might be an inconsistency between the actions of replevin and trover, but in this case there was a tortious taking. The primary object of the plaintiff was to obtain the immediate possession of the goods. In this she has failed by reason of the action of the defendant in retaining the possession, as was his right, and in ordering the goods sold. She alleged in her replevin suit, and established, that she was entitled to the immediate possession of the goods, and that they were unlawfully taken and wrongfully detained. The taking was a conversion, so was the sale. She alleged nothing in the action of trover antagonistic or contrary to her allegation in the replevin action, nor were the two actions based' upon conflicting theories. She did not seek vindictive damages in either proceeding. She did not waive the tort in the action of replevin. In fact, her action in replevin is founded upon the tort. In her suit in trover she counts her action upon the same tort, and the liability of the sheriff and Woodworth being a joint and several one, and the several actions brought successively against them not, in our opinion, being inconsistent, we think. she had the right, to maintain them.
The testimony of Rockwell and Charles, deceased witnesses, given in the replevin suit, was properly received'.
“The admissibility of this evidence seems to turn rather on the right to cross-examine than upon the precise nominal identity of the parties * * * and though the trial were not between the parties, yet if the second trial is between those who represent the parties to the first, by privity in blood, in law or in estate, the evidence is admissible.” 1 Greenleaf on Evidence, § 164.
The record shows that the testimony of these witnesses as contained in the bill of exceptions in the trial of the replevin suit was read. We must presume that it was correctly read and that the bill of exceptions was properly authenticated.
The instruction given by the court was correct. “The general rule of damages in actions of this kind when the plaintiff recovers judgment for the value
For the reasons given, the judgment is affirmed.
Affirmed.