Cohen & Hammond, Inc. v. Arnold

Carroll, J. This is an action on a replevin bond. The case is before us on a report, which states that due execution of the bond and proper demand for the return of the replevied property were admitted. At the trial of this action to recover on the bond, the defendants offered to show that the automobile replevied, when the writ of replevin was served, was not “ the property of the present plaintiff, but was the property of another, and was taken on May 26,1921, from a person who had acquired supposed title to it from the defendant, Arnold, prior thereto.” The exclusion of this evidence presents the question to be decided. If the right of possession of the defendant in the original action were the only question there involved, and the title of the defendant was not put in issue, the present defendants [257] in the suit on the bond would not be barred from showing that the plaintiff was not the true owner of the automobile. Davis v. Harding, 3 Allen, 302. Barry v. O’Brien, 103 Mass. 520. Leonard v. Whitney, 109 Mass. 265, 269. Easter v. Foster, 173 Mass. 39. But it was agreed that the original action “ was tried . . . upon its merits”; that the question of title was raised and both parties introduced evidence bearing thereon, although the particular evidence was offered for the first time at the trial on the bond. The title to the automobile having been put in issue and determined in favor of the defendant in the replevin action, the judgment is conclusive against the defendants in the action on the bond. See Leonard v. Whitney, supra; Easter v. Foster, supra; Smith v. Mosby, 98 Ind. 445. “ When title to the property in dispute has been put in issue and made the subject of judicial inquiry, the judgment rendered thereon against the plaintiff in replevin is indeed final and conclusive in all subsequent litigation. It cannot be opened in an action on the bond, at the hearing in chancery to ascertain for what sum execution shall issue. It is too late, in order to prevent the entry of judgment for a return, or to defeat a recovery on the bond, to allege and prove facts affecting the title.” Leonard v. Whitney, supra. As we construe the report, the title of the plaintiff in this action was determined in the original action when that case was tried. In our opinion the defendants are bound by the former judgment. It was also agreed that the plaintiff’s damages, if any, were $700. We need not therefore consider whether the evidence offered was material on the question of damages. See Leonard v. Whitney, supra. Judgment is to be entered for the plaintiff in the sum of $700. So ordered.