Opinion
November Term, 1902.
Edward C. Hart, for the appellant.
Eugene P. Ouchie and M.A. Gearon, for the respondent.
The judgment of the County Court should be reversed and the judgment of the Justice's Court should be modified by reducing the same seventy dollars as of date of the rendition thereof, and as modified affirmed, without costs in the County Court or this court to either party.
The action was brought to recover damages for the conversion of four cows. The plaintiff alleged that he was the owner and entitled to the possession of the cows. The defendant denied this allegation and further alleged that two of the cows were the property of one Schmitt and the other two the property of one Monklebaum, and that defendant held the cows as their agent. Judgment was rendered for the value of all the cows, one hundred and thirty-seven dollars and fifty cents, being thirty-five dollars per head, less two dollars and fifty cents, deducted from the total, for the amount conceded to be due the defendant for keeping.
It does not appear upon what grounds the County Court placed its decision reversing the judgment rendered by the justice. The respondent here suggests two questions relating to the jurisdiction of the justice, as to both of which we think the respondent is in error.
First. That the justice had no jurisdiction of the action originally because neither of the parties resided in his town, the plaintiff residing in Niagara county and the defendant in the city of Buffalo, adjoining the justice's town.
It does not appear that this question was raised in the Justice's Court or in the County Court even. When the plaintiff was sworn he stated his residence as Lockport. The defendant when sworn stated that he lived at 1226 Bailey avenue, but omitted to say whether that avenue was in the justice's town or in some city outside that town. On the adjourned day the case was not called until more than an hour after the time to which the case had been adjourned and, therefore, the justice lost jurisdiction to proceed with the trial. The parties, however, went to trial without any objections as to the jurisdiction of the justice for any reason and thereby submitted themselves to his jurisdiction and cannot now be heard to question it for either of these reasons.
Second. That the justice lost jurisdiction after the case was submitted to him by failing to decide the same within four days.
The judgment was rendered on the fifth day after the submission, but properly so, because the fourth day was Sunday. (Stat. Const. Law, Laws of 1892, chap. 677, § 27, as amd. by Laws of 1894, chap. 447.)
The only remaining questions relate to the merits of the cause of action and particularly the question of title to the cows in question. The plaintiff claimed title to all the cows by purchase from one Specht, who claimed title thereto under a chattel mortgage and a foreclosure sale thereunder. This mortgage was given by the Schneiders to Specht December 28, 1900, and filed in the Erie county clerk's office December 31, 1900. The foreclosure and sale took place March 25, 1901. There was dispute as to whether this mortgage covered the two Monklebaum cows. There was evidence upon both sides bearing upon this question, however, and the decision of the justice should not be disturbed on appeal. Monklebaum claimed title to these two cows by purchase from the Schneiders some time in January, 1901, the price paid being $110, wages due him from the Schneiders for labor. His purchase being after the making and filing of the chattel mortgage to Specht, his title was subject to such mortgage and to Specht's title acquired through the foreclosure and sale of the cows. The plaintiff was, therefore, entitled to recover the value of these two cows.
There are more serious questions presented with reference to the title to the two Schmitt cows. Schmitt held a chattel mortgage covering them given by the Schneiders December 18, 1900, but not filed until December 28, 1900, the same day the Specht chattel mortgage was taken. Specht or his agent, who had full charge of the business, had no knowledge of the Schmitt chattel mortgage when he took his own, and the filing of the first mortgage at two-thirty in the afternoon of the same day the second mortgage was taken could hardly be regarded as notice to the second mortgagee of the first mortgage. It would seem, therefore, that the Specht mortgage, under which the plaintiff claimed title to these two cows, was a lien upon them prior to the lien of the Schmitt mortgage under which the defendant claimed protection in this action.
But the defendant sought to show that the question of title to these two cows had been settled between Specht and Schmitt, under whom the parties to this action claimed, in a prior action between them tried in the Municipal Court in Buffalo, and for this purpose a copy of the record in that action was offered and received in evidence in the present action. The certificate of the clerk of the Municipal Court was hardly in compliance with the statute (Laws of 1891, chap. 105, § 466, as amd. by Laws of 1895, chap. 805), but the objection made to the reception of the record, that it was incompetent, immaterial and irrelevant, was not sufficient to raise this question. The record being in evidence showed an action commenced March 29, 1901, four days after the foreclosure of the Specht mortgage, in favor of Specht and against Schmitt, in the Municipal Court of Buffalo, in replevin to recover two cows alleged in the complaint to be the property of plaintiff and to have been wrongfully converted by defendant to his own use, March 20, 1901, demanding the usual relief in such an action. An answer was made to the complaint, a general denial, a trial had, and judgment rendered April 30, 1901, for the defendant of no cause of action, with costs. The record does not show anything with reference to replevin process issued or returned, whether the property ever was taken under such process or what finally became of it. There was some evidence given outside the record tending to show that the cows in question were taken in custody by a constable and that they were never retaken in the action by the defendant, but were in the custody of the officer when the trial was had and the judgment rendered, but this evidence is not very satisfactory. It is enough, however, to make it reasonably certain that the two cows involved in that action were the two here in question. After judgment the cows were taken by Schmitt, and were not thereafter in the possession of Specht or this plaintiff. The title to these two cows as between Specht and Schmitt was clearly litigated in that action, and decided in favor of Schmitt, and such decision and judgment must be regarded as res adjudicata between them and their privies, the plaintiff and defendant in this action.
Under this condition of things the justice was not authorized to find that plaintiff had established title to these two cows, and was entitled to recover the value thereof.
The foregoing views lead us to conclude that the judgment of the County Court should be reversed and the judgment of the Justice's Court should be modified by reducing the same seventy dollars as of the date of the rendition thereof, and as modified affirmed, without costs in the County Court or in this court to either party.
McLENNAN, SPRING, HISCOCK and DAVY, JJ., concurred.
Judgment of County Court reversed and judgment of Justice's Court modified by reducing the same seventy dollars as of the date of the rendition thereof, and as so modified affirmed, without costs in the County Court or in this court to either party.