Barnett v. Kinney

At Law. Action of replevin in the district court of Alturas county, Idaho T., by Josiah Barnett, assignee in bankruptcy of M. H. Lipman, against Patrick H. Kinney, sheriff. Judgment was given for plaintiff, but this was reversed by the territorial supreme court. 23 Pac. Rep. 922. Plaintiff appeals. Reversed.

Statement by Mr. Chief Justice FULLER: This was an action of replevin commenced in the district court of Alturas county, territory of Idaho, on December 12, 1887, by Josiah Barnett against P. H. Kinney, to recover the possession of certain goods and chattels mentioned in the complaint and for damages and costs. The case was submitted to the court for trial, a jury having been expressly waived, upon an agreed statement of facts, and the court made its findings of fact as follows: That on November 23, 1887, M. H. Lipman was a citizen of the United States and of the territory of Utah, residing and doing business at Salt Lake City, and was possessed and the owner of real and personal property in Utah, and of certain personal property at Hailey, in Alturas county, Idaho, and that he was indebted to divers persons, (none of whom were then, or at the time of trial, citizens, residents, and inhabitants of Idaho,) and was insolvent, and on that day duly made, executed, and delivered to Barnett, as his assignee, a deed of assignment in writing, which was accepted by Barnett, who assumed the execution thereof; that, by the assignment, Lipman sold, transferred, assigned, and delivered to Barnett all his property, real and personal, wherever found, in trust, to take possession and convert the same into cash, and pay the necessary expenses, and then his creditors, according to certain classes named in the assignment, preferences being made thereby in favor of certain creditors, as against others, all being designated by classes; that on November 25, 1887, Barnett, as assignee, took actual possession of the personal property situated in Idaho, and on November 26th, and before the property was taken by Kinney, filed the assignment for record in the proper office in Alturas county; and that Kinney had actual knowledge and notice in the premises. It was further found that the assignment 'was and is valid by the laws of the territory of Utah;' that Lipman was indebted to the St. Paul Knitting Works, a corporation organized and existing under the laws of the state of Minnesota, the liability having been incurred by him as a citizen, resident, and inhabitant of Utah, and in the transaction of his business there; that on November 26, 1887, and while Barnett was in actual possession, Kinney, who was sheriff of Alturas county, under a writ of attachment in favor of that corporation and against Lipman, took possession of the property; and that thereupon this action of replevin was commenced and the possession of the property delivered to Barnett, who had sold the same and retained the proceeds subject to the final disposition of the action. It was further found that prior to the taking of the property from Barnett by Kinney under the writ of attachment, and after the assignment had been recorded, Kinney, as sheriff, had taken it from Barnett's possession, under a writ of attachment issued at the suit of a firm located in Nebraska against Lipman, and it had been retaken from Kinney in an action of claim and delivery brought by Barnett against him, which action was still pending. It was also found that the goods had been shipped from Lipman's store in Utah in September, 1887, to Alturas county; and that Lipman, from September, 1887, up to the time of making the assignment, had been doing business in Idaho in the running of a branch store at Hailey, in Alturas county; and that at the time of bringing this action defendant was wrongfully detaining the property from the possession of plaintiff.

The court found as conclusions of law that the assignment, a copy of which was annexed to the finding to facts, was a good and valid instrument, and conveyed title to the property in question; and that the plaintiff, at the time of bringing the action and the trial, was entitled to the possession of the property, and to judgment therefor, and for nominal damages and costs. Judgment having been entered, an appeal was prosecuted to the supreme court of the territory, by which it was reversed, and the cause remanded to the district court, with instructions to enter judgment for the defendant. The record shows that the case had been tried in the district court before the then chief justice of the territory, and that a change had taken place in that office when the hearing was had on appeal. Of the three members composing the supreme court, one was for reversal and another for affirmance, while the chief justice had been of counsel between the same parties in a case in the same district court, but 'with a different attaching creditor;' and he stated that he had not participated in the discussion of the case, but, his associates having reached opposite conclusions, the disagreeable duty rested upon him 'of breaking the deadlock,' which he did by concurring in the opinion for reversal. The majority opinion is to be found in 23 Pac. Rep. 922, and the dissent in 24 Pac. Rep. 624. The case was brought by appeal to this court.

W. H. H. Miller and C. S. Varian, for appellant.

Wm. Stone Abert and Jno. W. Warner, for appellee.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.