Marix v. Franke

The opinion of the court Avas delivered by Brewer, J.: Plaintiff brought an action of replevin against John Sehott, claiming to be the owner and entitled to [135] the possession of certain personal property. Under § 182 of the civil code Schott gave an undertaking and obtained the property. Such undertaking was as follows: [Title.] “We, Charles Eranlce and Henry Franke, bind ourselves to the plaintiff, Martin M. Marix, in the sum of six hundred and twenty-three dollars, that the defendant, John Schott, will deliver the said property in controversy in this suit to the plaintiff, if such delivery be adjudged, and will pay all costs and 'damages which may be awarded against him. H. Franice. C. Franke.” A trial of said action was had before a jury, a verdict returned for the plaintiff therein, and the following judgment was entered: [Title.] “ It is therefore now by the court here considered, ordered and adjudged, that the said plaintiff Martin M. Marix have and recover of and from the said defendant John Schott the personal property in said plaintiff’s petition described, and the sum of one cent damages, as found by the verdict of the jury heretofore rendered herein, for the detention of said property, as well as his costs in and about this suit expended, and that execution issue therefor.” 1. Undertaking liablityRjUnfleuaking; buries. 2. Judgement iep?evinntta Schott paid the costs and damages but failed to return the property. This action is now brought upon the undertaking to recover the value of the property Can it be maintained? The defendants undertook that Schott should deliver the property, if delivery was adjudged. Delivery was adjudged. Schott has not delivered. By the plain language of the undertaking a liability thereon has arisen. But the statute provides that the value shall be. determined in the original action. Judgment “may be for the possession, or for the recovery of possession, or the value thereof in case a delivery cannot be had.” It is no doubt true that the judgment should be entered in the alternative, and that a failure to so enter it is error, which may be corrected by proceedings in in error. Hall v. Jenness, 6 Kas., 356. But a judgment simply for the return, though irregular, is valid. It cannot be questioned collaterally. It is conclusive [136] so far as it goes. It can be enforced by execution. Mason v. Richards, 12 Iowa, 72; Whitney v. Lehmer, 26 Ind., 503. If the judgment is valid, how are the sureties released from their promise to see that it is performed, simply because the plaintiff has not taken all in his judgment he might have done? The defendants were not parties to the replevin action. Instead of being concluded by a finding there as to value, they may be heard here thereon. They profit rather than lose by the omission. This question was well considered by the supreme court of Indiana in the case just cited, and we agree with them that “ it does not follow that the absence of such assessment and judgment shall have the practical effect of a finding and judgment that the property was of no value, or that no other tribunal shall examine the question.” See also as sustaining these views, Kaffer v. Harlow, 5 Allen, 348; Mason v. Richards, 12 Iowa, 72; Hawley v. Warner, 12 Iowa, 42; Hall v. Smith, 10 Iowa, 45. The decisions of the supreme court of California upon this question, 7 Cal., 568, and 24 Cal., 147, do not commend themselves to our judgment. 3. Title property míe to properííyfuaegméntued The decision of this court in Kayser v. Bauer, 5 Kas., 211, does not conflict with the views here expressed, and the language of Air. Justice Valentine in the opinion filed therein must be construed in reference to the facts of that case. Those facts were as follows: The creditors of one Stern levied an attachment on his (Stern’s) goods. Hollenbeck, claiming to have purchased from Stern, replevied from the officer. He turned the goods over to Bauer, who went on his bond to the officer. Judgment was rendered for the value of .the property in favor of the defendant, the officer. The judgment was paid. Creditors of Stern then sought to garnishee Bauer as having property of Stern’s in his possession. This the court decided could not be done. The defendant in the replevin 'suit, ‘the officer, having taken a judgment for its value, and that being paid, the title of the properly replevied vested in Hollenbeck, the plaintiff. In other words, if a party takes a judgment for the value, and [137] that is paid, he cannot afterwards claim the property also. This case would more nearly resemble that, had Schott deliv•ered the property to plaintiff in pursuance of the judgment in the replevin action, and the plaintiff had then brought suit for the value. The judgment of the court below will be reversed and the •case remanded for further proceedings in conformity with the views expressed in this opinion. All the Justices concurring.