Johnson v. Durnell, Sheriff

93 P.2d 914, 98 Utah 487, 1939 Utah LEXIS 22

• Court: Utah Supreme Court
• Decided: September 18, 1939
• Docket: No. 6068.
• Status: Published

Opinions

LARSON, Justice.

The District Court of Utah County awarded plaintiff a judgment against defendants for conversion and they appeal. The action grew out of the following facts: In May, 1934, one Grant Miner bought from Anderson-Callister, Inc., a truck automobile with steel dump body under a conditional sales agreement retaining title in the seller until payment of the purchase price. This contract with all rights thereunder was by Anderson-Callister, Inc., assigned to the C. I. T. Corporation, one of the appellants herein, hereinafter called the C. I. T. Miner defaulted in his payments and the C. I. T. repossessed the truck, minus the dump body which had been taken off, and then filed suit in replevin against Miner in the City Court of Provo City for the possession of the dump body or its value, fixed at $200. No proceedings in claim and delivery ancillary thereto were attempted. Miner, served with summons, defaulted and in April, 1985, the Clerk of the City Court, upon application of the C. I. T., the plaintiff in that suit, entered a judgment by default against Miner which, so far as material here reads:

“It is ordered, adjudged, and decreed that plaintiff [C. I. T. Corporation] do have and recover from the said defendant the sum of Two Hundred Dollars or for the recovery of possession of said personal property as prayed for in said complaint, with interest thereon at the rate of eight per cent per annum from date hereof until paid, together with plaintiff’s costs and disbursements.”

This judgment was signed by the Clerk and entered April 19,1935. Notice of entry thereof was served upon defendant therein on the 25th of April, 1935. On the 16th of September following the C. I. T. caused an execution to be issued out of the City Court and placed the same in the hands of the Sheriff of Utah County directing him to levy upon and sell enough of the unexempt property of Miner to satisfy the judgment for $207.95, the amount of the judgment, with costs of execution. This execution was returned nulla bona. On September 24th the C. I. T. by affidavit caused an order to issue from the City Court directing Miner to appear before such court on proceedings supplemental to execution for examination touching his property; and at said hearing on October 4, 1935, obtained from the court an order directing Strong and Grant, employers of Miner, to pay to the C. I. T. on the judgment certain moneys due from them to Miner. On March 26, 1936, Miner sold the dump body to Hugh Johnson, plaintiff and respondent in this action, and received $200 therefor. On September 8, 1936, the C. I. T. caused another execution to issue from the City Court upon its judgment against Miner, and under said execution the Sheriff of Utah County, E. G. Durnell, one of the defendants in this action, took the steel dump body from plaintiff in this action. Upon Johnson’s making formal demand on the Sheriff for return of the property, the Continental Casualty Company of Indiana, one of the defendants herein, gave to the Sheriff an undertaking to indemnify him against any damages sustained by reason of his refusal to redeliver the property to Johnson. This action in conversion was then brought by Johnson against the C. I. T., the Sheriff and the surety on the undertaking. Plaintiff prevailed in the District Court and Defendants assign error.

The trial court took the view that the C. I. T. had pursued a course which vested title to the body in Miner and it therefore had no defense to this action. Whether the court was correct in its holding is the question presented on this appeal.

In a conditional sale (or title-retaining contract) the title remains in the seller for his benefit and protection. He retains the title to protect himself against loss if the purchase price is not paid by the buyer. This title retained in him is subject to a defeasance however. If the buyer pays the purchase price the seller’s right to assert title is defeated and the title vests by operation of law in the buyer, without further action, in the absence of a positive stipulation in the contract requiring some further act to be done. Swallow v. Emery, 111 Mass. 355; Smith v. Barber, 153 Ind. 322, 53 N. E. 1014.

As long as the buyer keeps his obligations under the contract he has the right of possession against the seller or any one claiming under him subsequent to the time the buyer obtained possession. What rights the buyer may have against one claiming through the seller under a contract prior in date to the buyer’s possession we do not now indicate. Miner, who bought the truck and signed the conditional sale contract, was entitled to the possession of the truck so long as he kept up his payments, and upon payment in full the title would by operation of law then have vested in him. He did not, however, keep his contract. He defaulted in his payments.

When Miner defaulted in his payments the C. I. T. repossessed the property. It did this affirmatively by taking physical possession as its own of such of the property as it could find, that is, the truck minus the dump body which had been removed from the chassis. It commenced an action in replevin against Miner for the body, alleging it was the owner and entitled to the immediate possession of the body, and prayed for the recovery of possession of the body, or if recovery could not be had for $200, the value thereof. That suit was prosecuted to a judgment and the rights of the parties to this action spring, not from the conditional sale contract but from that judgment and the proceedings subsequently taken under it by the C. I. T.

That judgment in the replevin siut was, on the application of the C. I. T., made, signed and entered by the Clerk of the Court and not by the Court or the Judge thereof. The statute provides that the Clerk may enter judgments for money only and on claims founded upon contract only. All other judgments must be made by the court. R. S. U. 1933, 104-28-1.

The validity of that judgment however is not assailed in this action. There was, and there is now, no exception to the judgment, no motion to set it aside, or for a new trial; and neither the Court below nor this Court has been asked to change, nullify or disregard that judgment. Both the plaintiff and the defendants in this action predicate their rights on that judgment. And neither party can assert rights under the judgment and at the same time say it is invalid. The C. I. T., which had the judgment entered as it was, proceeded under it, collected money thereunder, and even in this action relies thereon and defends and justifies under it, is now in this action estopped from asserting, setting up, or taking advantage of its invalidity. The validity of that judgment has not been raised in this action. Both parties hereto rely upon it. But the parties do construe it differently and give it different effects. Plaintiff, Johnson, contends that it is a simple money judgment; that the Clerk could enter a money judgment but could not enter one for the return of the property, and that the clause with respect to recovery of possession is surplusage. Defendants-appellants contend that they have a judgment for the possession of the property with an incidental right to recover the value if the property is not recovered. Neither position can be maintained. Plaintiff’s argument has been answered by the showing already made that the Clerk could enter no judgment for the possession of property. Appellants’ position is untenable upon several additional grounds. First, the judgment as entered (upon application of appellant, C. I. T.), was not for the recovery of the property or its value in case a return be not had, but it was “ordered, adjudged and decreed that the plaintiff do have and recover from the defendant the sum of $200, or for the recovery of possession of said personal property as prayed for in the complaint.” Replevin is essentially a possessory action and judgment should always be for the recovery of possession of the property, unless it should affirmatively appear at the time of judgment that a return cannot be had. For the benefit of the plaintiff, it is provided that the judgment be in the alternative, that is, for the value in case a delivery cannot be had. The judgment for the value, being for the benefit of the plaintiff, may be waived by him and he may rely on the recovery of possession only. On the other hand, he cannot waive the provision in the judgment for a return of the property, which is for the benefit of the one detained in good faith and thus compel him who detains in good faith, to become a purchaser. He may relieve himself from the judgment by returning the property if he can do so. Kunz v. Nelson, 94 Utah 185, 76 P. 2d 577, 115 A. L. R. 1322. But the judgment entered in the City Court did not provide for a money judgment only in the event the property could not be returned. It decreed a money judgment in plain, definite and unambiguous terms. If it be construed as an alternative judgment, it would be one for the return of the property in case the money be not paid. There is no provision for an alternative judgment in that form. But even that would be reading something into the judgment not found there. If the judgment be construed as an alternative one, it must mean that the C. I. T., in whose favor the judgment runs, may take its choice as to treating it as a judgment for the money or for the possession of the property, that is, it would be an optional judgment. It chose to treat it as a judgment for the money value of the dump body. While the judgment in that form could have been assailed by Miner, the defendant therein,-as improper, he submitted to such judgment and to such construction of it. Both sides in that suit treated and regard ed the judgment entered as a valid one for the value of the property, thereby in effect or impliedly consenting or agreeing that recovery of possession of the property by the C. I. T. could not be had. When in replevin actions it is evident that recovery of possession of the property by the party out of possession cannot be had, judgment may be entered for its value only. Kunz v. Nelson, supra. Even if judgment should have been in the alternative, failure to so enter it is error which may be corrected by proceedings on appeal. A judgment simply for the return or simply for the value, though irregular, is valid. It cannot be questioned collaterally. It is conclusive so far as it goes and may be enforced by execution. Kunz v. Nelson, supra; Hall v. Jenness, 6 Kan. 356; Marix v. Franke, 9 Kan. 132. The party who takes a judgment either for possession only or for value only and does not complain thereof, and proceeds to enforce the same, is bound thereby as to all parties. When a party takes a judgment for value only, he thereby waives all rights to a judgment for return of the property. He elects to look to the debtor and not to the property. He waives the right to recover possession and all claims of title or interest in the property. He in effect treats his action as for a conversion, and the judgment by operation of law vests title and the right of possession, so far as the parties are concerned, in the judgment debtor. Marix v. Franke, supra. Certainly, standing on his judgment, he can claim nothing not given by the judgment. One having elected to take a judgment for value only is by that judgment, so long as it is not properly challenged, barred from asserting any other or further rights to the matters litigated therein than are given by his judgment.

For plaintiff to succeed he must show that by virtue of that judgment and the proceedings under it the C. I. T. elected to take a judgment for value only and thereby waived and is therefore estopped from asserting any right to retake the property. Plaintiff was in possession of the property and when appellant, Durnell, took the property from plain tiff, he did it under and by virtue of no right except that derived through an execution, issued on that judgment for the collection of money from the judgment debtor, Miner. For the Sheriff, therefore, to now assert there was no judgment to sustain his action is to admit he acted without right, and thereby lay himself liable to the judgment against him. And of course if judgment lies against the Sheriff, it lies also against the surety on the undertaking.

While under our statutes, as above noted, a judgment in replevin should be for the return or delivery of the specific property or for the value thereof in case a return cannot be ■had, the prevailing party, if out of possession, to be entitled to the benefit of the adjudication of right of possession in him, must pursue the property by a writ of restitution or an execution under the provisions of subdivision (5) of Section 104-37-2, R. S. U. 1933, which reads:

“(5) If it is for the delivery of the possession of real or personal property, it must require the officer to deliver the possession of the same, describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs, damages, rents or profits recovered by the same judgment out of the personal property of the person against whom it was rendered, and the value of the property for which the judgment was rendered, to be specified therein, if a delivery thereof cannot he had; and if sufficient personal property cannot be found, then out of the real property as provided in the first subdivision of this section.”

The execution under which the Sheriff took the dump body from Johnson, which act led to the institution of this suit, recited the fact that the C. I. T. had a judgment against Miner

“for the sum of $200 and $7.95 cost of suit with interest * * * until paid, or the possession of the following described property [describing the dump body] * * *.

“These are Therefore to command you to collect the aforesaid judgment and costs * * * and that you levy on and sell enough of the unexempted personal property * * * to satisfy the same, and in case said judgment cannot be satisfied in the manner aforesaid, to attach and take into custody the above described dump body * * * and deliver the possession of the same to the C. I. T.” (Italics added.)

This execution is clearly and definitely the reverse of that provided by subdivision (5) of Section 104-37-2, R. S. U. 1933, supra. If the C. I. T. still sought to claim the property, the issuance of both the execution and all proceedings subsequent to the first execution were irregular; and for the purposes of this action at least, the C. I. T. thereby waived whatever rights they may have acquired under the judgment in rem. Hallagan v. Johnston, 55 Ind. App. 509, 104 N. E. 91.

If the property was attached and levied on under the writ as the property of Miner it should have been advertised and offered for sale in the regular way provided by statute. The proceedings taken here were irregular and unauthorized. The Sheriff had no right or authority to take the body from Johnson, respondent herein, and arbitrarily turn the same over to the C. I. T. The fact that at the suggestion of counsel for the C. I. T., he assumed powers he did not possess, and disposed of property wrongfully seized, in a manner not provided or authorized by statute, must of itself render him and the C. I. T., at whose instance he acted, liable to the person from whom the property was seized for the conversion. The Continental Casualty Company, having undertaken to protect the Sheriff against loss, and the owner of the property against loss or conversion of the property, is likewise liable.

In conclusion it should be noted that nothing herein said is contrary to the general principle that valid and regular judgments in replevin are not satisfied until the property is returned or the value set out in lieu thereof paid, and under such judgments title to the property does not pass to the judgment debtor until the judgment is fully paid and satisfied. Hodur et al v. Cutting, 248 Ill. App. 145; Davidhizar v. Elgin Forwarding Co., 89 Or. 89, 173 P. 893; 15 Ann. Cas. 454; 26 R. C. L. 1157, Sec. 73.

This is a case in which a judgment was. invalidly obtained because entered by the Clerk where the Clerk had no power to enter judgment, but which void judgment the plaintiff in that action is estopped to declare void because it had the judgment entered as it was, stood on it, still stands on it, benefited by it, treated it as good and collected money under it. Such judgment, recognized as binding on it, by estoppel is also to be considered as one in form for money only, and hence as if it were in conversion. The C. I. T. must therefore be considered under the record as having elected to pass title and is estopped to say otherwise. Miner having possession and, as it were, a title by estoppel, could pass such title on to Johnson.

. The judgment of the lower court is affirmed. Cost to Respondent.

WOLFE, J., concurs.