Scallan v. Wait

Reed, J". i. practice: ceedingsMnruiings?nt The allegation in the amendment to the answer, 'that the transaction between plaintiff and Wait was a sale’ of the crops growing on the premises, and not a lease of the farm, is not established by the evidence. But the allegations of the petition, that the premises were rented to Wait, that he raised a crop of flax thereon during the term of the lease, that he mortgaged the same to the Farmer’s Bank, and that the same was sold and delivered to Hanson & Mills, who paid the market value thereof to the bank, and that it applied the same on said mortgage, are all clearly proven. ' The ground. upon which the circuit court dismissed the plaintiff’s petition, and denied him relief as against the bank and [707] Hanson & Mills, was, not that these parties were not liable to him for .the amount of his lien on the property which they had taken and converted, but that he was not entitled to relief as against them in equity, for the wrong complained of. We think the court erred in dismissing the jietition on this ground. It had already held, in passing on defendant’s motion to transfer the case to the law calendar, that it was properly brought in equity. The same issue which was presented by the pleadings when this ruling was made had been tried and submitted to the court when the ruling in question was made. The rulings are manifestly inconsistent. The court should have adhered to the former ruling, and disposed of the case as an equitable action, or, if convinced that the ruling was erroneous, it should have set aside the order, and transferred the cause to the law calendar for- trial as an ordinary action. It would have been competent for the court to take the latter course, even after the cause had been submitted. Indeed, the record shows that plaintiff asked, at the time when the final order was made, that the cause be transferred and tried as an ordinary action. 2 sorfor eon-63" eraps°si*ject líen™errorfn remedy.™ss‘ We think the cause was improperly brought as an equitable action. The relief which plaintiff seeks, by the action, as against these defendants, is the recovery of dainages i’or ^ie wrongful conversion by them of property on which he had a, lien for the security of his rent, and it is within the province of a court of law to grant him this relief. But the error as to the kind of proceedings adopted does not cause the abatement or dismissal of the action. The remedy, therefore, is by a change into the proper proceedings, and a transfer of the action to the proper docket. Code, § § 2514, 2515, 2516. The order of the court dismissing the action is reversed, and the cause is remanded for further proceedings consistent with this opinion. Reversed.