Denver Live Stock Commission Co. v. Parks , 41 Colo. 164 ( 1907 )

Mr. Justice Goddard

delivered the opinion of the court:

The action having been commenced before a justice of the peace, there are no written pleadings. We must, therefore, resort to the proceedings before the justice of the peace, as disclosed by the record, in order to determine whether the action of the court in directing a verdict was permissible, and the defendant entitled to the verdict rendered, it being conceded that no demand for the possession of the property described in the chattel mortgage was made upon appellee until after the writ was issued and in the hands of the constable.

The authorities are not uniform upon the question when demand is necessary, many of the cases holding that where chattels came lawfully into the possession of a defendant, there must be a demand and refusal or proof of conversion before suit is brought, while others hold, for reasons that seem to us sound and persuasive, that a demand, made after the bringing of the action, but prior to the execution of the writ, is sufficient, for the reason that a refusal to surrender the property upon such demand is convincing proof that, had a demand been seasonably made, it would have been unavailing. Among them, see: Morris v. Pugh, 3 Burr 1241; Rodgers v. Graham, 36 Neb. 730, 733; O’Neill v. Bailey, 68 Me. 429; Badger v. Phinney, 15 Mass. 359; Grimes v. Briggs, 110 Mass. 446.

We think these eases state the better rule, not only for the reasons above stated, but also because, as stated in § 372, 2d edition of Wells on Beplevin, “The only reason why demand is necessary in any ease, is to give the defendant an opportunity to surrender without being put to costs; and while this is eminently proper, the object of the rule is fully accomplished, and the plaintiff sufficiently punished for his neglect by judgment against him for costs, without being compelled to surrender his goods. ”

Furthermore, the appellee, having given a redelivery bond, procured a change of venue and contested the case on its merits before the justice of the peace, was not in a position to urge the want of a demand before the action was commenced, for the first time in the county court on appeal.—Lamping v. Keenan, 9 Colo. 390.

It is well settled that when the defendant claims the ownership of the property and the right of possession, no proof of demand is necessary.—Lamping v. Keenan, supra; Howard v. Braun, 14 So. Dak. 579, 586; Wells on Replevin (2d ed.) § 374.

In either view, the court erred in directing a verdict, and the verdict and judgment rendered were clearly unwarranted. The judgment is therefore reversed and'the cause remanded for trial upon the merits. ■ Reversed and remanded.

Chief Justice Steele and Mr. Justice Bailey concur.