Cochrane v. Stevenson

New Mexico Supreme Court

Cochrane v. Stevenson

255 P. 404, 32 N.M. 264

CourtNew Mexico Supreme Court

DecidedFebruary 17, 1927

DocketNo. 3132.

StatusPublished

Cited by2 cases

This text of 255 P. 404 (Cochrane v. Stevenson) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cochrane v. Stevenson, 255 P. 404, 32 N.M. 264 (N.M. 1927).

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Opinion

OPINION OP TI-IE COURT

PARKER, C. J.

This is an action in replevin, in which the district court found that the plaintiff was not entitled to the possession of the chattels at the time of the suing out of the writ. The court, refused, however, to either award the return of the chattels, or to render judgment for the assessed value thereof. The defendant, appellee here, had filed an answer, in which he elected to take the value of the property replevined in case the plaintiff failed to maintain his action. In this the court was in error. The statute (section-4350, Code 1915) provides that, in case the plaintiff fails to prosecute his action with effect, judgment shall be rendered against the plaintiff and his securities for the value of the property taken, and that it shall be at the option of the defendant to take back such property, or the assessed value thereof. See, in this connection, Roth v. Yara, 19 N. M. 8, 140 P. 1071.

It follows that the judgment should be reversed, and the cause remanded, with' directions to enter a judgment against the plaintiff and the sureties on his replevin bond for the assessed value of the property taken, in addition to the judgment heretofore rendered for damages in favor of the defendant for the unlawful taking and detention of the property, and it is so ordered.

B1CKLEY and WATSON, JJ., concur.

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OPINION OP TI-IE COURT

PARKER, C. J.

This is an action in replevin, in which the district court found that the plaintiff was not entitled to the possession of the chattels at the time of the suing out of the writ. The court, refused, however, to either award the return of the chattels, or to render judgment for the assessed value thereof. The defendant, appellee here, had filed an answer, in which he elected to take the value of the property replevined in case the plaintiff failed to maintain his action. In this the court was in error. The statute (section-4350, Code 1915) provides that, in case the plaintiff fails to prosecute his action with effect, judgment shall be rendered against the plaintiff and his securities for the value of the property taken, and that it shall be at the option of the defendant to take back such property, or the assessed value thereof. See, in this connection, Roth v. Yara, 19 N. M. 8, 140 P. 1071.

It follows that the judgment should be reversed, and the cause remanded, with' directions to enter a judgment against the plaintiff and the sureties on his replevin bond for the assessed value of the property taken, in addition to the judgment heretofore rendered for damages in favor of the defendant for the unlawful taking and detention of the property, and it is so ordered.

B1CKLEY and WATSON, JJ., concur.

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Bluebook (online)

255 P. 404, 32 N.M. 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cochrane-v-stevenson-nm-1927.

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