Brady v. Beadleston

bound to assert his rights there, and to secure an affirmative judgment for the return of the ice-box, “either with or without damages for the taking, withholding, or detention thereof,” (Consolidation Act,^[1] § 1342;) and that, having failed to do so, this action cannot be maintained. We think this position is untenable. It was optionable with the defendant in the replevin action to take advantage of this provision of the statute. It was held in Yates v. Fassett, 5 Denio, 21 , that where one who was sued in replevin in the detinet, and pleaded non-detinet, and had a verdict in his favor, with judgment for •costs, but not for a return, afterwards brought trover for the property against the former plaintiff, such action was maintainable, though he might have so pleaded in the first suit as to have entitled himself to a return or to the value of the property in damages. The principle that parties are concluded by the final judgment of a court of competent jurisdiction, not only as to the subject-matter actually determined, but as to every other matter which was in issue, and which the parties might have litigated, is not applicable, for the reason that the defendants’ affirmative claim to the property is in the nature of a cross-suit arising from the summary act of the plaintiff in taking possession under the replevin writ. The defendant is allowed by the statute not merely to defend himself against the charges of the complaint, but to set up his affirmative rights as against the actual taking under the provisional remedy. This view was enforced by cogent reasoning in the case cited, (pages 31 and 32,) and the following observations of Whittlesey, J., are directly in point: “But, as the defendant made no claim of title, the verdict could not find any title in him, nor the court adjudge any return to him. Such verdict •ascertains nothing as to the title of the property, except that it was not in the plaintiff. If the defendant, in whom the title really is, afterwards institutes an affirmative action to obtain possession, is it a sufficient answer on the part of the former plaintiff, who is adjudged to have no title, if he avers that the real owner should have interposed his claim in the former suit, and, having neglected to do so, shall be decreed to have lost it? I cannot think it is. The plaintiff in the replevin suit was permitted summarily to take possession of the property. On this account the defendant, as a favor, is permitted to plead title with the view of having a return adjudged in the same suit. But I cannot think that he is compelled to plead or be barred from setting up his title afterwards.” This case was considered and approved in Angel v. Hollister, 38 N. Y. 378 , where Woodruff, J., remarked that the fact that the plaintiff “has no affirmative judgment for a return does not, per se, show that he is not entitled to the possession. The illustration given in Tates v. Fassett is apt and conclusive. A defendant in an action may, in a proper case, recoup his damages, and may obtain his affirmative judgment, but the fact that he omits to recoup does not bar his cross-action. ” In this latter case McKnight v. Dunlop, 4 Barb. 36 , (upon which the defendants here rely,) was reviewed, and, so far as it seems to conflict with Yates v. Fassett, disapproved; Miller, J., stating that the latter case “has never been directly considered and overruled, and that it should stand as the better exposition and elucidation of the principle involved, and as a well-considered and sound decision of the question.” If these views are applicable to the courts of record, a fortiori, they should govern in the district courts, where people ignorant of the technicalities of practice so frequently appear without counsel. We think, therefore, that the plaintiff was entitled to maintain this action, and that his failure to obtain affirmative relief in the district court was no bar thereto.

It is also contended that the learned judge erred in excluding evidence tending to show the defendants’ ownership of the ice-box. But that question was settled against the defendants in the district court, and was res adjudicata.