Holtz v. Riddell , 101 Conn. 416 ( 1924 )

The plaintiff claims that the pleadings in the replevin action were not of such a nature as to put in issue the question and amount of the damages recovered by Minnie Holtz as defendant therein, and that defendants' second defense in the present action does not contain allegations sufficient to show that the damages sought by her as defendant in the former action were considered and passed upon by the jury, or could properly be considered under the pleadings. The present defendants make the complaint, answer and counterclaim and the judgment-file in the replevin action part of their defense by reference, and these, in connection with the allegations of the answer, would seem fairly to set forth a defense of res adjudicata, and to show that the question of damages arising out of the replevy and retention of the automobile were fairly before the jury and determined by them. The counterclaim is in the form provided in the Practice Book for the purpose of recovering damages by a defendant. There was no demurrer to it, nor was any motion made to make it more specific. The allegations, though general, afford a sufficient basis for the admission of evidence of damages arising from the replevy, and to sustain a verdict and judgment therefor. Section 6105 of the General Statutes, provides that where the right of possession of the property replevied is put in issue, "if the defendant in his answer by way of counterclaim claims damages for the replevin, he may give evidence of such damages; and judgment, . . . if for the defendant, shall be for a return of the property, and for his damages and costs." In the counterclaim in question, the defendant alleged ownership in herself and upon this plea she succeeded. If she was wrongfully deprived of the possession of her automobile, she was entitled to at least nominal damages. She was therefore entitled to give evidence as to the amount of damage, and in that regard an issue was properly before the jury.

Appellant contends that a mere claim for damages and demand for judgment does not constitute a counterclaim, citing New Idea Pattern Co. v. Whelan, 75 Conn. 455,53 A. 953. In the case cited there was no counterclaim pleaded as such, but merely a demand for judgment following an answer, which latter contained matter some of which was appropriate in a counterclaim, and the court held that this was not proper pleading and did not lay the foundation for an award of damages. But that is not the instant case, for here there is a counterclaim, and the claim for damages is predicated upon its allegations.

But plaintiff further contends that the record itself does not show that damages were in fact assessed in the replevin action. The judgment-file is founded upon a recital of the verdict rendered in the action, which was: "In this case the jury finds the issues for the defendant Holtz on her counterclaim and therefore find that the defendant Holtz recover possession of the goods described in the declaration and one dollar damages"; also that "the court accepted said verdict." The judgment-file further adjudges to the defendant possession of the property and "one dollar damages." Taken in connection with what we have before said regarding the pleadings, this is conclusive that the issue of damages was litigated at the trial and considered by the jury and is a basis of the judgment by the court. The judgment-file is conclusive as to its contents until corrected. Sisk v. Meagher, 82 Conn. 376, 73 A. 785, and earlier cases cited in the opinion.

As sustaining his claim that an action on a replevin bond is maintainable, after judgment for return of property and damages of $1 in favor of a defendant in the replevin action, plaintiff's counsel relies uponGould v. Hayes, 71 Conn. 86, 40 A. 930, saying that the instant case differs only from the cases cited, in that the present plaintiff's claimed $1,000 damages, while none was claimed in the authority just cited. But this is exactly the feature which differentiates the case of Gould v. Hayes from the instant case. In the latter case defendant filed an answer and prevailed thereon, but made no claim for damages. The jury nevertheless found in his favor with $1 damages and the court rendered judgment for possession and damages to that amount. This court, on appeal, held that the part of the verdict and judgment relating to damages, "as well as to much of the judgment-file as is predicated upon it, have no validity in law." Therefore it was held that this judgment was no bar to a suit upon the replevin bond for damages; and further, that in recovering damages arising out of a replevy the defendant had his election either to file a counterclaim in the original suit, or to obtain those damages after a decision in the replevin action in his favor as to the property involved, by an action on the replevin bond. The plaintiff in the present action having elected to raise the question of damages in the replevin action and having obtained and collected a judgment for damages rendered in her favor, cannot maintain the present suit since judgment in the replevin action is properly pleaded as a bar thereto.

There is no error.

In this opinion the other judges concurred.