Damm v. Mason ( 1894 )

Montgomery, J.

This action was replevin, brought by these plaintiffs, who claimed under a mortgage executed to them by one Henry L. Partrick. Defendant also held a mortgage on the same property, executed by Partrick prior to the date of the plaintiffs’ mortgage, but left off the record until after plaintiffs’ rights accrued. On the 16th of January, 1893, the defendant, Mason, replevied from Partrick a large amount of property, including the property in question. The property thus coming into Mason’s hands, plaintiffs, claiming the right to it under their mortgage, brought this suit in replevin, to test the title.

1. Defendant claimed to have shown on the trial that the .title to some of the property was adjudicated in" the case of Mason v. Partrick, 100 Mich. 577, and claimed that such judgment was res judicata. But, aside from the fact that the record fails to show in whom the title was adjudicated to be, a sufficient answer to the defendant’s contention is that plaintiffs were not parties to that suit; so far from it that they had, before that adjudication, brought this independent action to have their right to the property herein settled, leaving Partrick and Mason to settle in their suit all that the court in that proceeding was authorized to settle, viz., the rights of Partrick and Mason as between themselves.

2. Certain of the property was not recovered on the writ, and the circuit judge, in directing a verdict, stated the amount for which the verdict should be rendered. There was no dispute about the amount, and this course was justifiable.

-Judgment will be affirmed, with costa.

The other Justices concurred.