American Law Reports Annotated

(129 Okla. 211, 264 Pac. 194.)

stantially as theretofore stated in the record by the court, with the addition: "The court further finds on the said 27th day of February, 1926, that the Wilson Motor Company was not a party to this suit, and that the Wilson Motor Company, on the 27th day of February, and on this date, was and is the owner of the mortgage upon which this lawsuit is founded."

Judgment was rendered in the sum of $2,800, with interest at 6 per cent from October 20, 1925, in favor of Jack Dunn and William Shaffer and against intervener Wilson Motor Company and plaintiff Pierce-Arrow Finance Corporation, and for attorney fees in the sum of $250, from which the intervener appeals.

It is contended that the court erred in overruling the demurrer of the plaintiff and the intervener to the cross-petition of defendants. There are many reasons supporting the court's ruling.

Pleading-form

1. The demurrer was not filed in time under § 284, Okla. Comp. Stat. 1921. It was not subscribed by the party or its attorney, as required by § 286, Okla. Comp. Stat. 1921. Considerable discretion is allowed the trial court in con-time of filing. Sidering such pleadings as to time under § 285, Okla. Comp. Stat. 1921 (Long v. Harris, 37 Okla. 472, 132 Pac. 473), and as to the form of the pleading required by statute (Long v. Shepard, 35 Okla. 489, 130 Pac. 131, and Brown v. State, 9 Okla. Crim. 382, 132 Pac. 359), and, upon being presented, the oral demurrer was overruled or, in other words, rejected.

v. Grove, 72 Okla. 290, 180 Pac. 553. So then, if, as contended, the crosspetition had failed to state that any money was due and unpaid, owing from Cokes to Dunn under the pledge at the date of commencement of the action, even then, by reason of the well-established exception in replevin actions to the general rule, the general denial contained in the answer-repeated in the cross-petition-would admit of any defense in so far as the defense to the action of replevin is concerned; yet it may be said the cross-petition is based upon an action in conversion, peculiarly triable with the replevin action by reason solely of the statute. There some difficulty arises by reason of the liberality of statutory pleading.

The allegations of the answer are adopted in the cross-petition, bearing in mind that the contention is based upon the omission of an allegation of nonpayment. 9 Cyc. 730; 21 R. C. L. 119; Bates, Pl. & Pr. 231. There is the allegation "that this defendant, by virtue of said pledge and assignment, has a lien upon said car for the sum of $2,800, . . . and is entitled to have his said lien foreclosed. . The allegations further are that on October 18, 1925, Cokes pledged the car to defendant to hold fifteen days-the time fixed for payment. The action being commenced on November 2, the debt was not due at that time, but defendant was holding the car for security and not by reason of breach of promise to pay the debt. At least then as to defense of a replevin action, defending the right of possession, the demurrer could not be sustained, as plaintiffs must recover, if at all, upon the strength of their own title. The contention must be lost.

Proposition 2 is that the court erred in sustaining the demurrer of defendants to the evidence of plaintiff and intervener. In reply to appellant's contention, it is urged that the trial court rendered judgment upon the merits and not upon a demurrer to the evidence; that the

jury was discharged without protest, and that, when the court was considering the demurrer to the evidence, counsel for appellant requested the court to make findings of fact, and that appellant thereby waived his right to a trial by jury and that the findings of fact rendered by the court were upon the whole evidence, and therefore the cause was placed upon the plane of actions in law tried to the court, without the intervention of the jury, and, there being competent evidence reasonably tending to support the court's findings, the judgment must be affirmed-citing Porter v. Wilson, 39 Okla. 500, 135 Pac. 732; Lowrance v. Henry, 75 Okla. 250, 182 Pac. 489; Merchant's Transfer & Storage Co. v. Ft. Smith Couch & Bedding Co. 105 Okla. 195, 232 Pac. 79; Luster v. First Nat. Bank, 111 Okla. 168, 239 Pac. 128; Smith v. Burlingham, 44 Kan. 487, 24 Pac. 947.

We cannot agree with this reasoning, for the reason that the request for a finding of fact was limited to "findings of fact on which to base the demurrer of the defendants." We cannot construe such request as an intention on appellant's part to invite the court to weigh the evidence. When the demurrer was sustained, the judgment was in the offing. The appellant expressed his desire to know the court's theory and the undisputed facts in evidence supporting that theory upon which the court acted upon the demurrer. The eminent trial judge accommodated counsel. We see no waiver of rights, and find that the cases cited are not applicable to the facts here.

The plaintiff filed no motion for new trial and did not appeal. The judgment is therefore conclusive as to the plaintiff.

As to the intervener Wilson Motor Company, we shall consider the undisputed evidence. On October 17, 1925, Cokes, owner of the car, took the same to Caddo county, and there it was placed in the custody of Dunn, and there it remained until

February 27, 1926, when it was surreptitiously removed by intervener

notwithstanding that from November 2, 1925, intervener knew the said property was in custodia legis. Defendants claimed a lien on the car by reason of an alleged pledge, and whether that pledge was bona fide or fraudulent the same was in process of litigation.

While it is true the affidavit for continuance as to what Cokes would testify was admitted and that to the effect that there was no considera

tion for the pledge and that the car was taken with actual knowledge of intervener's lien, and in addition C. W. Palmer testified that Dunn had confessed to him that the car was taken from Cokes by force in payment of a gambling debt, yet this testimony tended to establish the fraudulent character of the pledge, the matter pending when the car was so taken by agents of intervener. There was evidence in the record tending to disprove those facts. There was testimony as to the bona fides of the pledge. There was evidence of an estoppel; that upon inquiry at the time of making the pledge the plaintiff had telegraphed and confirmed by letter that it had not purchased the Cokes notes submitted because they did not conform to requirements, as well as inquiry and resulting information concerning the absence of interest claimed by intervener. These were disputed facts upon which the merits of the action in replevin were pending in court at the time of the conversion of the property in custodia legis by plaintiff and intervener.

It is well established that plaintiff, in a replevin action, must recover upon the strength of his own title and not upon the weakness of his adversary's.

The car was taken to Caddo county, October 17, 1925, by the owner. The mortgage was not filed in Caddo county; yet 120 days, as provided. by 7651, Okla. Comp. Stat. 1921, had not expired when Dunn secured

(129 Okla. 211, 264 Pac. 194.)

the car under his alleged pledge. Arnold v. Wittie, 99 Okla. 236, 227 Pac. 132; First Nat. Bank v. Guess, 72 Okla. 125, 179 Pac. 29.

We shall consider then, under the rule on demurrer to the evidence, all facts in dispute favorable to the demurrant, as withdrawn. We must admit that defendants would have lost the decision in replevin at that point on demurrer, but for the act of the intervener in conversion. The law is that it cannot prevail. We now turn to that point and examine the cases thereon.

This brings us under the third and last assignment of error, that the judgment of the trial court is contrary to law. We shall consider only that the judgment was based upon the fact of a conversion, and determine whether such finding is within the issues of this replevin case. Appellant says that the only issue in this replevin case is the right of the plaintiff to possession of the property at the commencement of the suit. Intervener does not claim that it was entitled to possession on that date, but that intervener as successor to plaintiff's rights under reassignment of the mortgage after the commencement of the action was entitled to recover.

Chattel mortgage-right of mortgagee to take possession -breach of peace.

Intervener claims the right to take the property under the terms of its mortgage, notwithstanding it was in custodia legis, because it says it was not a party to the pending action on February 27, 1926, when it took the car. That its right to possession was superior to the then litigants. Such an absurd contention could only prevail where might was right and where utter contempt was in vogue of all law, courts, and orderly procedure. The case cited, Alexander v. Alexander, 65 Okla. 105, L.R.A.1917D, 984, 164 Pac. 114, does not support the theory or act in this case of intervener, for there was considered an assertion of interest by a third party in chattels held in custodia legis

in an orderly, recognized, and legal manner, by process of court, as distinguished from asserting such interest by force or stealth.

Are the issues in a replevin action, under our statutory practice, limited to the right of the parties to possession of the property at the commencement of the action? First Nat. Bank v. Kreuzberg, 75 Okla. 97, 181 Pac. 717, so holds: "The gist of replevin is the plaintiff's right to the immediate possession of the personal property in controversy at the commencement of the action by reason of his being the owner or having a special interest therein. Tulsa Rig, Reel & Mfg. Co. v. Arnold, 64 Okla. 160, 166 Pac. 135. This is the issue in the case

at bar, and this issue should have been submitted to the jury. The question as to whether the mortgaged property had been disposed of by the mortgagee pending determination of the suit was not an issue in the case, and had no place either in the pleadings or the evidence unless incidentally to ascertain the value of the property."

Appellant relies upon Firebaugh v. Gunther, 106 Okla. 131, 233 Pac. 460, but that case does not support it, for there mortgaged property was taken from the executor by a deputy sheriff without due process and over the protest of the person in charge. This court approved an instruction on the question of conversion and sustained a verdict and judgment of exemplary damages based upon the wrongful taking of the property, and cited Ray v. Navarre, 47 Okla. 438, 147 Pac. 1019, which case is most adverse to appellant. Therein the mortgagor replevined the property seized by the mortgagee (or his assignee) at a time when it was not in custodia legis, but by force. This court said, relative to the theory that, by the terms of the mortgage, mortgagee could by force take it, "Moreover, if we assume that the defendants were the owners of the note and mortgage at the time they made the seizure,

still they were not at liberty to compel the performance of its terms by force," and cited Murphey v. Virgin, 47 Neb. 692, 66 N. W. 652, and Jones on Chattel Mortgages, 4th ed. p. 705:

"A man has no right to resort to robbery to collect his claims."

"To obtain possession under such a show and pretense of authority is to trifle with obedience of citizens to the law and its officers."

Therein conversion was set up as a ground for exemplary damages and the verdict rendered thereon was sustained and that in a replevin action. Further it was therein held that there was evidence to establish a conversion, and that "subsequent purchase of the mortgage and note could not serve as a justification for their former wrongful acts."

Assuming again that intervener, at the time the action in replevin was commenced by plaintiff, possessed a lien by reason of a valid mortgage on the property, with default in payments thereunder existing, it committed a conversion by stealth if not by force (with colore officii for use in case of need, for the chief of police was with them)

Liens-extinguishmentconversion.

prior to its intervention, and extinguished its lien by reason of § 7423, Okla. Comp. Stat. 1921, which is as follows: "The sale of any property on which there is a lien is satisfaction of the claim secured thereby, or, in case of personal property, its wrongful conversion by the person holding the lien, extinguishes the lien thereon."

Again reverting to the case of First Nat. Bank v. Kreuzberg, supra, wherein it was held that the question as to whether the mortgaged property had been disposed of by the mortgagee pending suit was not an issue in the replevin action unless incidentally as to value of the property, we observe that holding is contrary to Firebaugh v. Gunther and Ray v. Navarre, supra, unless it be distinguished by reason of the time of the conversion relative to whether it occurred before or after

ly exerted over another's personal property in denial of or inconsistent with his rights therein."

In the latter case this court held that Chadwell "at the time of the institution of the replevin action. had wrongfully converted the property and waived their lien and that the plaintiffs were entitled to possession of the property on said date." It was the view of the court there expressed: "In other words, after obtaining possession of the property the mortgagee had a right under the mortgage to foreclose and sell the property and was not guilty of conversion.'

And the view there expressed was that, if after obtaining possession of the property and after the giving of a redelivery bond the mortgagees had proceeded to foreclose their lien according to law, that fact would not have been an issue in the replevin action. That view therein expressed pressed presupposes two things: (1) The obtaining of possession by rightful methods, not by force, stealth, or colore officii. (2) That the conversion occurs after the commencement of the action.

The latter case in our judgment reached the right conclusion, but we believe (supposition 2, above) the time of conversion of the property has nothing to do with the availability as an issue of conversion in a replevin case, and further that First Nat. Bank v. Kreuzberg, supra, is contrary to the Oklahoma cases both prior and subsequent, and should be expressly overruled, and it is so overruled.

In Farmers' State Bank v. Ste

(129 Okla. 211, 264 Pac. 194.)

phenson, 23 Okla. 695, 102 Pac. 992,

Mr. Justice Williams, speaking for

the court, said: "Said property be-

ing in custodia legis,

erty held under

-in custodia

legis.

Replevin-prop- the plaintiff in er-
redelivery bond ror selling the same
under the powers of
the chattel mort-

gage prior to the final determination

of the replevin action, and said ac-