Fowler v. Hosmer

Hooker, J. William H. Saunders gave mortgages upon personal property in the following order: (1) to George W. Saunders; (2) to John J. Closs; (8) to Hincks & Johnson. George W. Saunders took possession under his mortgage. Hincks & Johnson then agreed with Closs to advance the expenses and foreclose the Closs mortgage, the net proceeds, after paying for foreclosure, to be divided equally. Hincks & J ohnson thereupon hired Fowler to seize the property under the Closs mortgage, which he did. George W. Saunders thereupon brought replevin, making Closs and Fowler defendants. An arrangement was thereafter made between Closs and Saunders by which the property was surrendered to Closs, and Saunders was to discontinue his action, without costs. Upon his motion for leave to discon [92] tinue, affidavits pro and con were received, and' the motion was granted. The circuit judge seems to have found that Saunders and his bondsmen dealt with Gloss in good faith, being unaware of Hindis & Johnson’s connection with the foreclosure of the Gloss mortgage. Fowler was a defendant, and does not seem to have been consulted. He was liable for costs and damages in case of defeat in the replevin case. He was entitled to his costs in case he should win. Closs had no authority to stipulate a discontinuance and release of the sureties, and thereby bind Fowler. Again, Hindis & Johnson were foreclosing, in the name of Closs, for their mutual benefit. Fowler was their agent, and contends that his principals had rights to and an interest in the property as against Closs. We think that the circuit court could not summarily dispose of these questions upon this motion. The relator had a right to have his interest determined judicially in the replevin case, and judgment in accordance with such determination. Writ granted. McGrath, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.