DocketNumber: S.F. No. 1666.
Judges: Chipman
Filed Date: 5/4/1900
Status: Precedential
Modified Date: 10/19/2024
Replevin. Defendant had judgment on motion for a nonsuit upon the opening statement of counsel for plaintiff. Plaintiff appeals from the judgment by bill of exceptions.
The complaint sets forth the ordinary action of claim and delivery. Counsel for plaintiff in his opening statement stated to the court the nature of the suit; that the chattels, the subject of the action, were included in a chattel mortgage executed by defendant to plaintiff's assignor, and that the action is one of claim and delivery, based solely on said mortgage; that "the mortgage contained a provision that the party of the first part [defendant in this action] might retain possession of said personal property until default of the payment of the interest or principal, and, after default, the mortgagee [plaintiff herein] should be entitled to the possession of the property in said instrument described." It appeared also that default had been made and that defendant still retained possession. It was conceded that an action to foreclose the mortgage had been brought and had been dismissed upon application of the mortgagor, defendant herein, without notice to plaintiff and without any trial of the merits of the action, and "that such dismissal of said action in favor of said defendant Gordon was duly entered and recorded on the twenty-third day of March, 1896." It does not clearly appear whether the concession last above stated was made before or after the motion was made.
Counsel for defendant moved for a nonsuit on two grounds: "1. That only one action can be maintained for *Page 491 the foreclosure of a mortgage and only in accordance with the Code of Civil Procedure, chapter 1, title X; . . . . and 2. That the suit here at bar is an action of replevin based exclusively upon a mortgage of personal property."
1. The facts stated in relation to the bringing of an action to foreclose the mortgage and its dismissal cannot be considered, as they were not made one of the grounds for the motion. (Palmer v.Marysville etc. Pub. Co.,
2. Respondent claims that appellant cannot be heard because he failed to include any specifications of errors in his bill of exceptions. No specifications were necessary. (Barfield v. SouthSide Irr. Co.,
3. Replevin will lie in a case like the present one. (Civ. Code, sec.
4. Section
Respondent cites an Idaho case holding, under a statute similar to ours, that after foreclosure proceedings have been begun, and pending foreclosure, the mortgagee cannot have the remedy of replevin (Cederholm v. Loofborrow, 2 Idaho, 176); and it is claimed that the case is authority for the judgment here. The facts are not the same in the two cases, and hence the Idaho case does not apply. But if that case was rightly decided, and it should be held also that before foreclosure the mortgagee could not have an action for possession of the mortgaged property, it would result in entirely nullifying the agreement, for the mortgagee could not have possession either before or after foreclosure. The statute having given the right of possession to the mortgagee on the default of the mortgagor, where expressly provided for in the mortgage, the legislature must have intended that the right might be enforced without foreclosure. It is so held in many states (Jones on Chattel Mortgages, secs. 430, 431, 705, 706), and in our opinion the rule is not affected by our section
We think the plaintiff should have been permitted to put in his evidence. If it be true that his rights under the mortgage have already been determined, and defendant should set up the defense by appropriate answer, the question of res judicata can then be properly passed upon. As the matter is now before us we cannot consider that question.
The judgment should be reversed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed. Van Dyke, J., Harrison, J., Garoutte, J. *Page 493