Huish v. Fenkell

ELIAS HANSEN, Justice. Plaintiff brought this action to recover on a dissolution bond which the defendants executed for the purpose of securing the release of an automobile from an attachment levied by the plaintiff in an action against the defendants Fenkell. The bond reads as follows: “Know all men by these presents, That we P. D. Fenkell and Ida Fenkell, of Eureka, Utah, as principal, and Mrs. Agnes O’Connor and Robert Laird of Eureka, Utah, as surety, are held and firmly bound unto Charles E. Huish, execution plaintiff in the above entitled case in the District Court of Nephi, Juab County, Utah, in the sum of five hundred dollars, for the payment of which well and truly to be made and done, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents. “Sealed and dated at Eureka, Juab County, Utah, this 25 day of June, 1931. “The condition of the above obligation is that, whereas, D. J. Sullivan, Sheriff of Juab County, by virtue of an attachment issued out of the said court, has seized and taken into possession a certain automobile Serial No. DL2214, Motor No. 125861, and bearing plate No. 42647, as the property of the above bounden Ida Fenkell, defendant in said cause. “Now, therefore, the condition is such that if said property shall be kept and taken care of, and delivered to the said Sheriff on demand, to satisfy any judgment which might be recovered against the said P. D. Fenkell and Ida Fenkell in the said cause, or if they shall pay the appraised value of said automobile, not exceeding the amount of the judgment and costs, or shall pay the judgent and costs which may be awarded against them and in favor of the said Charles E. Huish, in said cause, then and in that event this obligation shall be void, otherwise to remain in full force and effect. “[Signed] Paul D. Fenkell, Principal “Mrs. Ida Fenkell, Principal “Mrs. Agnes O’Connor, Surety “Robert Laird, Surety.” A trial to the court sitting without a jury resulted in a judgment in favor of the plaintiff and against the defen *256 dants for the amount of a judgment theretofore rendered in favor of the plaintiff and against the defendants Fenkell. Defendants appeal. They attack the judgment appealed from upon two grounds, viz.: First, that plaintiff’s complaint is fatally defective, in that it fails to allege the value of the automobile which was released from the attachment, and for that reason fails to state a cause of action; second, that there was a failure of consideration for the bond sued upon in that the attached automobile did not belong to the Fenkells, and also in that, notwithstanding the court below directed the sheriff to return the attached automobile to the defendants Fenkell, the sheriff failed to so return it. The sufficiency of the complaint to state a cause of action was brought in question in the court below by the defendants filing a general demurrer thereto. The same question was also raised by defendants moving for a nonsuit at the conclusion of the plaintiff’s evidence in chief because the evidence failed to show the value of the automobile in question. The overruling of defendants’ demurrer to the complaint and the denial of their motion for a nonsuit are assigned as error. It is in substance alleged in the complaint: That plaintiff commenced an action to recover a money judgment in the sum of $300 principal, interest and costs, from the defendants Fenkell; that in such action plaintiff filed his affidavit and undertaking on attachment; that a writ of attachment issued pursuant to which the sheriff of Juab county, Utah, levied upon the automobile; that thereafter defendants executed the bond sued upon in this action and, over plaintiff’s objection, the attached automobile was, by the court, ordered released from the attachment; that prior to the release of the automobile from the attachment the defendants Fenkell made, executed, and delivered to the Commercial Credit Company a title retaining note or order investing such company with all the legal title and right to possession theretofore held by the Fenkells; that, pursuant to such title retaining note and order so executed by the Fenkells, the Commercial Credit Company demanded and secured *257 from the sheriff the possession of the automobile on behalf of the defendants; that plaintiff has secured a judgment against the defendants Fenkell in the sum of $300 principal, $76.09 interest, and $21.90 costs; that plaintiff caused execution to issue on the judgment so recovered by him against the Fenkells, and the same was returned wholly unsatisfied; that, after such execution was returned unsatisfied, plaintiff caused to be served upon each of the defendants in this action a written demand and notice in which defendants were notified of the amount of the judgment rendered in favor of plaintiff and against the Fenkells that such judgment was wholly unsatisfied; and that execution had issued thereon and returned unsatisfied; that demand had been made upon defendants to return to the sheriff of Juab county, Utah, on or before a date specified the automobile theretofore released from the attachment, or, in case of a failure to so deliver the automobile, that defendants pay to the sheriff “the full amount of the judgment with costs and accruing costs, which said judgment is less than the full value of the property so released.” It was further alleged in the complain that the judgment against the Fen-kells remained wholly unpaid, and that they refused to return the automobile which was released from the attachment. Plaintiff prayed judgment against the defendants for the amount owing upon the judgment theretofore rendered against the Fenkells. It is appellants’ contention that plaintiff in the present action is limited in his recovery in all events to the value of the automobile as of the time the same was released from the attachment. Our attention is directed to provisions of R. S. Utah 1933, 104-18-21 and 104-18-22. It is there provided: 104-18-21: “Whenever the defendant has appeared in the action he may, upon reasonable notice to the plaintiff, apply to the court in which the action is pending, or to the judge thereof, for an order to discharge the attachment levy in whole or in part; and upon the execution of the undertaking mentioned in the next succeeding section, an order may he made releasing from the operation of the attachment any or all of the property attached; and all of the property so re *258 leased and all of the proceeds of the sales thereof must be delivered to the defendant upon the justification of the sureties on the undertaking, if required by the plaintiff.” 104-18-22: “Before making such order the court or judge must require an undertaking on behalf of the defendant, by at least two sureties, residents and freeholders or householders in the state, to the effect that in case the plaintiff recovers judgment in the action, the defendant will, on demand, deliver the attached property so released to the proper officer, to be applied to the payment of the judgment, or, in default thereof, that the defendant and sureties will, on demand, pay to the plaintiff the full value of the property released. The court or judge making such order may fix the sum for which the undertaking must be executed, and if necessary in fixing such sum to know the value of the property released, the same may be appraised by one or more disinterested persons, to be appointed for that purpose.” It will be observed that the undertaking involved in this action is somewhat unlike the bond provided for in the sections just quoted. By the terms of the bond here involved the signers thereof undnertook, in the event plaintiff recovered a judgment against the Fenkells, to either return the automobile, or pay the appraised value thereof not exceeding the amount of the judgment, or pay the amount of the judgment and costs which plaintiff might recover against the Fenkells. No claim, however, is or could successfully be made that the bond was invalid because it is not strictly in compliance with the provisions of the sections above quoted. The liability of the signers of the bond is fixed and limited by its provisions. It may readily be conceded that the signers of the bond could have been relieved from further liability on the bond by a timely return of the automobile if it was in the same condition as when released, or by paying the appraised value thereof not exceeding the amount of the judgment recovered by the plaintiff against the Fenkells, or by the payment of such judgment and costs. It is, however, alleged in the complaint that the defendants, after demand made, failed and refused to comply with any of the three alternatives mentioned in the undertaking. Under such circumstances the option passed to *259 the plaintiff to elect which of the alternative undertakings he would rely upon. Page on Contracts, vol. 5, § 2799, p. 4956; 13 C. J. 630, and cases there cited. Defendants cite and rely upon the case of Blume v. Berry, 98 Cal. App. 30, 276 P. 133. It is apparent that the bond involved in the cited case was quite unlike the bond in the instant case. The bond in the cited case provided that the signers thereof would pay to the plaintiff the full value of the property released. There was no provision in that bond that the signers thereof would pay the judgment or any unsatisfied portion thereof. In this case one of the alternative provisions of the signers of the bond was that they would “pay the judgment and costs which may be awarded against them (Fenkells) and in favor of the said Charles E. Huish.” Defendants’ demurrer to the complaint was properly overruled. What has been said with respect to the overruling of the demurrer applies to the denial of defendants’ motion for a non-suit. It may be observed in this connection that in their answer defendants deny all liability on the bond. No claim is made by them that they have or intend to elect to perform any of the alternative conditions mentioned in the bond. Moreover, so far as appears, the automobile was never appraised and no claim is made that the value of the automobile was not equal to or greater than the amount of the judgment. No error was committed in denying defendants’ motion for a nonsuit. It is next urged that the judgment should be reversed because the automobile in question did not belong to the Fenkells. The evidence touching that question is very meager. It does appear from affidavits and pleadings filed in the case of Charles E. Huish v. P. D. Fenkell and Ida Fenkell, which affidavits and pleadings were received in evidence without objection in the instant case, that the automobile in question was, at the time it was attached, in the possession of the Fenkells and was registered in the name of the Commercial Credit Company of Salt Lake City as holding the legal title thereto, and Ida Fenkell as *260 being the equitable owner thereof. It also appears from the files received in evidence that Beatrice B. Mack, by leave of court, filed a complaint in intervention in that action. In that complaint she averred that the automobile which was attached by the sheriff belonged to her subject to the payment of $167 which was owing to the Commercial Credit Company on the purchase price thereof, and that neither of the defendants P. D. Fenkell or Ida Fenkell had any right, title, ownership, or equitable interest therein. To the complaint in intervention so filed by Beatrice B. Mack, the plaintiff filed a general demurrer. The demurrer was sustained and leave given to amend. So far as appears, no such amended complaint in intervention was filed. It further appears from the files in the action of Huish v. Fenkells that Beatrice B. Mack and the Commercial Credit Company made written demand upon Huish and the sheriff to release the attached automobile and return it to Ida Fenkell. In support of the demand an affidavit of Ida Fenkell was filed in the cause. In the affidavit Mrs. Fenkell averred that her daughter Beatrice B. Mack “has made all payments that have been made on the purchase price of said automobile, and is the owner of and entitled to the equity in same,” and that affiant Ida Fenkell “has no right, title or claim whatever in and to said automobile, other than that the said Beatrice B. Mack has permitted her to have the same in her possession and use it when the said Beatrice B. Mack is out of the State of Utah.” Evidently the demand was not complied with, and, so far as appears, neither Mrs. Mack nor the Commercial Credit Company took any measures to enforce compliance with the demand. The next step taken to release the attached automobile came from the Fenkells when they moved the court to release the automobile from the attachment and tendered the bond sued upon in the present action. As already stated in this opinion, they were successful in having the attachment released upon giving the bond in lieu thereof. Upon this record it may not be said that the defendants Fenkell were without any right, title, or in *261 terest in the automobile. That question has not been tried or determined. The fact that Mrs. Fenkell was in possession of the automobile when it was attached, and the further fact that it was registered in her name as the equitable owner thereof in the office of the secretary of state, was some evidence that she had an interest therein. Moreover, it is, to say the least, very doubtful if the defendants are in a position in this action to question the title to the automobile, they having executed the bond for the release of the attachment. Larsen v. Richards et ux., 48 Utah 196, 134 P. 583. It is finally urged on behalf of defendants that the judgment appealed from should be reversed because the sheriff did not return the automobile to the Fenkells after the attachment was ordered released. The record before us bearing on that phase of the case is as follows: At the time the hearing was had on the motion to release the attachment, the court made an oral order as shown by the minute entry received in evidence as a part of the files in the case of Huish v. Fenkells wherein it was directed that “said defendants offering in open court a bond for the delivery of automobile held under writ of attachment in this cause, and testimony being submitted in support of the bond, it is ordered that said automobile be released by the sheriff in behalf of the bond.” The minute order bears date June 29, 1931. On the following July 20th there was filed in the cause a written order signed by the judge wherein it was ordered “that the attachment by which the car hereinbefore mentioned and described was taken into custody and possession by the sheriff of Juab County, be, and the same is hereby discharged, and the said sheriff D. J. Sullivan, is hereby ordered to forthwith and without delay, deliver the said car back to the garage of the defendants from whence it was taken by him under said attachment, and that said delivery be made without further costs to the defendants at this time pending the final determination of the issues by this court.” On the day following the sheriff made return: *262 “That as ordered by the court heretofore on June 30, 1931, he ordered Carson’s Garage to release to defendants the said car or automobile described in said order. “That heretofore, and prior to the receipt of the foregoing order the Commercial Credit Company took into its possession said car according to information received from Carson’s Garage. “Said Commercial Credit Company claims a title prior to defendants, and has repossessed said automobile according to the best information and belief of D. J. Sullivan.” Under date of January 20,1932, the sheriff made an additional return as to what he did with respect to the release of the automobile. In that return he reported that on May 27, 1931, he attached the automobile in question and took the same into his possession; that he retained such possession until on or about June 29, 1931, when, pursuant to the order of the court directing him to release the automobile, he, at defendants’ request and order, delivered the same to “the Commercial Credit Company of Salt Lake City, Utah, a corporation, which said corporation claimed under defendants by a written order and title retaining note made, executed and delivered by defendants theretofore to said corporation, as shown on the records of the Secretary of State of Utah, and as set forth by defendants and intervener heretofore in said cause; that said order and note gave to said corporation all the legal title and right of possession to said car or automobile, subject only to the plaintiff’s attachment rights, then and there belonging to defendants. That said corporation then and there demanded said automobile from me, and pursuant to the court’s order, and pursuant to defendants’ written order and note, I therefore delivered to said corporation said automobile, which said corporation had all rights of possession to said automobile belonging to defendants.” Defendant Paul D. Fenkell was the only witness called by the defendants. After being examined as to some preliminary matters, he was asked the following question, and, over timely objection on behalf of plaintiff, gave the following answer: *263 “Q. Has that car ever been returned by the sheriff to you, or to either of the defendants in this action, or anyone for them? A. No.” The foregoing is all of the evidence touching the release of the attached automobile by the sheriff. It is said in 2 R. C. L. § 57, p. 845: “That the return of the sheriff or other officer of matters material to be returned upon a writ, is evidence, seems to be generally admitted. And it is not necessary in order to its admission as evidence that the action should have proceeded to judgment and the return have thus become a matter of record. The return when required by law is, according to some authorities, the only proper evidence of what was done by the officer thereunder, and no omission therein of any fact may be supplied by other proof. But when the statute does not make the officer’s return conclusive or the only evidence of the manner of executing process there seems to be no reason why the facts may not be shown by other competent evidence, provided it is not attempted to contradict the return. Whether the return is to be accepted as conclusive or as only prima facie evidence is a matter of some doubt. It may be conceded to be the general rule that it may not be contradicted by parol evidence. As between the parties to the suit and those claiming under them as privies, and all others whose rights and liabilities are dependent upon the suit, the return is conclusive. It is not conclusive, however, as to third persons whose interests, while not connected with the suit, yet may be affected by the proceedings of the officer. And a return embracing matters not required by statute, or which relate to acts done outside of the officer’s duty, is not receivable as evidence of such facts, nor does it in any way conclude the parties.” To the same effect is Jones’ Comm, on Evidence (2d.) vol. 4, p. 3534, § 1902 et seq. The statements made by the sheriff in his return with respect to matters relating to the ownership of the automobile, the persons entitled to the possession thereof, etc., are obviously not evidence of such facts, but the statement in the sheriff’s return that he delivered the automobile to the Commercial Credit Company upon defendants’ request and order is evidence of such facts. The view is expressed in a dissenting opinion that no part of the additional return of the sheriff has any evidentiary value because it was not timely filed, and also because it *264 was apparently filed without leave of court. Had objection been made to the admission in evidence of the sheriff’s additional return for such reasons, it may be conceded that such an objection should have been sustained. But no such or any objection was made to the reception in evidence of the sheriff’s additional return. Defendants having failed to question the compentency of the sheriff’s additional return, they thereby waived any objection that they might have urged against its admissibility. The only evidence which is claimed to contradict the sheriff’s return is the testimony of Paul D. Fenkell. His testimony and the return of the sheriff are agreed that the automobile was not returned to the defendants personally. The only evidence which tends even remotely to contradict the statement of the sheriff’s’ return that he delivered the automobile to the Commercial Credit Company upon the defendants’ request and order is the testimony of Fenkell that the sheriff did not deliver the automobile to “anyone for them.” So far as appears from this record no claim was made by any one that Paul D. Fenkell was entitled to possession of the attached automobile. It does appear from affidavits and pleadings filed in the cause of Huish v. Fenkells that claims were made that Ida Fenkell was entitled to its possession for and on behalf of her daughter, Beatrice B. Mack, the equitable, and the Commercial Credit Company, the legal, owner thereof. It is not made to appear that P. D. Fenkell had knowledge or information as to whether his wife Ida requested and ordered the sheriff to deliver the attached automobile-to the Commercial Credit Company. The testimony of Mr. Fenkell that the sheriff did not deliver the automobile to any one for the defendants is a bare conclusion and as such without probative value. Moreover, it is alleged in defendants’ answer in this cause that the sheriff failed, neglected, and refused to redeliver said car to the Fenkells who therefore “were unable to *265 protect the title of Beatrice B. Mack in and to said car * * * and neither the sheriff nor the said plaintiff made any attempt to protect the equity in said automobile although they knew full well and had been informed that the Commercial Credit Company of Salt Lake City, Utah, held the title retaining note thereto and finally while said automobile was still in the possession of said sheriff the said Commercial Credit Company, of Salt Lake City, Utah, acting under authority of the title retaining note it held repossessed itself of said car and resold the same.” It is apparent from the pleadings just quoted that defendants seek to escape liability in this action because neither the plaintiff nor the sheriff paid the $167 which they claim was owing the Commercial Credit Company on the purchase price of the automobile. When the attachment was released and the bond substituted therefor, plaintiff was deprived of his lien on the automobile. He was under no obligation to finish paying for the car. Nor did the sheriff owe any duty to the defendants to pay to the Commercial Credit Company the amount remaining unpaid on the purchase price of the automobile. Patch v. Wessels, 46 Mich. 249, 9 N. W. 269. The fact that the Commercial Credit Company took possession of the automobile, either by virtue of its title retaining note as alleged by defendants in their answer, or by virtue of a request made to the sheriff by the defendants as stated in the sheriff’s return, defeats defendants’ claim that they should be relieved of liability on the bond because the automobile was not returned to the Fenkells. The judgment is affirmed. Costs to respondent. FOLLAND and MOFFAT, JJ., concur.