Sachs v. Kinyoun

delivered the opinion of the Court:

Appeal from a decree in the supreme court of the District dismissing appellants’ hill for an injunction against the prosecution of a replevin suit, and for the appointment of receivers to take possession of and sell the chattels in controversy.

The facts are fully stated in the opinion of the learned trial justice, which reads in.part as follows:

“This case is before the court on a motion to dismiss the bill, on the ground that the plaintiffs have a plain, adequate, and complete remedy at law, that the bill does not state any facts by virtue of which plaintiffs are entitled to any relief in equity, and that the plaintiffs have no standing in a court of equity.

“The bill alleges that on March 80, 1915, the defendant J. Perry Kinyoun delivered certain .personal property to the plaintiffs to be stored by them; that a warehouse agreement was entered into between them, tlie defendant agreeing to pay storage charge and to repay certain advances of money in specified instalments. 'Thereafter various other loans were made to the said -J. Perry .Kinyoun, by the plaintiffs on the security of the said chattels. Only a small amount was ever repaid, it is alleged, on account of the advances and storage charges.

“Thereafter, and on August 16, 3915, George W. Kay re«iyvered a judgment against the defendants J. Perry Kinyoun and Lillian C. Kinyoun, his wife, in the municipal court, for $802.26, interest, and costs. Garnishment was issued on said judgment on September 22, 193 5. and all chattels in possession of the plaintiff were attached. Plaintiffs made answer to the garnishment to the effect that they claimed a lien, as of date October 25, 1935, in the sum of $721.75 on said chattels.

*568“On.November 15, 1915, Nay moved the court for a judgment of condemnation, and on the same, day the court, entered an order condemning the assets, subject to plaintiff's lien. Thereafter the attorney for Ray saw the attorney for the. plaintiff, and the latter suggested the advisability of having a writ of fieri facias issued, hut the former deem this unnecessary. Thereupon, the plaintiff's, to carry ont the judgment of the municipal court hauled the property to the auction rooms of O. G. Sloan & Company to dispose of it. On December 1, 1915, it was placed on the first floor of the auction house of the Sloan Company for the purpose of offering it for sale on December 4, 1915, after advertisement. Plaintiffs aver that the chattels were entered and registered in the name of M. J. Colbert, the attorney for Nay, hut say that “this was done without authority from them and against and contrary to their instructions to said defendant, C. G. Sloan & Company, to enter and register same in the name of the plaintiffs, the object of the plaintiff's being to in nowise affect or injure, their lien claims.”

“On December 2, 1915, J. Perry Ivinyoun and Lillian C. Kinyoun executed a hill of sale, to Joseph J. Kinyoun, the father of J. Perry Kinyoun, transferring the chattels to said Joseph J. Kinyoun. The plaintiffs allege that the transfer was without consideration, and for the purpose of defrauding plaintiffs of possession of the goods, and for the purpose of depriving plaintiffs of their lien claims. On December 2, 1915, Joseph J'. Kinyoun entered suit in replevin in the supreme court of the District against 0. G. Sloan & Company, and through the marshal took possession of the goods, which were later delivered to said Joseph J. Kinyoun. Plaintiffs alleged that this was done because said J. J. Kinyoun considered that he could take advantage of the fact that the defendant Nay failed to issue a writ of fieri facias, and because he thought that the plaintiffs had waived their lien by sending the chattels to the auction rooms of the Sloan Company.

.“The bill prays that the defendant Joseph J. Kinyoun be restrained during the pendency of this suit and perpetually thereafter from further prosecuting the replevin suit, that a *569receiver bo appointed to sell the goods, and that the* lien claims of the plaintiffs be allowed out of the proceeds of such sale.

“If the possession of the Sloan Com])any was in fact the possession of the plaintiffs, then the plaintiffs have the right to defend the suit in replevin, and secure the return of the property replevied at the trial of the case. A party claiming a lien, as by way of a mortgage on property taken in replevin, will be allowed to intervene and set up his claim. Albright v. Brown, 23 Neb. 136, 36 N. W. 207.

“A third party claiming the ownership of replevied property has the right to be made a defendant in a suit and assert his title; nor should his answer asserting his ownership and right of possession be stricken from the files for omission to state the evidence of his title, which is a matter to be shown at the trial. Wellborn v. Eskey, 25 Neb. 195, 40 N. W. 960. In the last-named case the ground for intervention urged was that the defendant obtained the goods by virtue of an order of attachment issued out of the district court of lied Willow county, upon the affidavit of the petitioner, and that the petitioner was the owner of the goods, and entitled to the possession thereof, and that tin-title of the petitioner was adverse to that of the plaintiff. Intervention was allowed.

Lawall v. Lawall, 150 Pa. 626, 24 Atl. 289, was an action of replevin against a husband, who was absent from the state-. The wife petitioned for leave to defend in her own interest, alleging joint ownership of the goods, desertion by her husband, and conspiracy between tlie defendant and bis father (the plaintiff) to defraud her of the goods which were in her possession. Plaintiff’s answer alleged title in defendant, transferred to the plaintiff for value. The court held that the petitioner was properly allowed. * * *

“It follows from the foregoing that tlie plaintiff's remedy at law is adequate; but there, is yet another reason why the plaintiffs’ bill must be dismissed. It is elemental law that the common-law lien depends on possession. Peck v. Jenness. 7 How. 612, 12 L. ed. 841; Gregory v. Morris, 96 U. S. 619, 623, 24 L. ed. 740, 741. Possession being lost, the lien is also lost, and the plaintiff no longer having possession of the goods *570must recover possession before lie can sue to foreclose, liis lien. Jones, Liens, 3d ed. sec. 1037. Phelan v. Terry, 101 Minn. 454, 112 N. W. 872, wbicb bolds also that the plaintiffs replevin is the appropriate action for regaining possession.” Appellants, however, contend that their right to file this bill should be sustained because sec. 85 of the “Law of 'Warehouse1. Receipts” applicable to the District of Columbia (30 Stat. at L. 301, chap. 167; Code 1911, p. 419), provides that “the remedy for enforcing a lien herein provided does not preclude any other remedies allowed by law for the enforcement of a lien against personal property, nor bar the right to recover so much of the warehouseman’s claim as shall not be paid by the proceeds of the sale of the property.” In other words, appellants contend that the remedy for enforcing a warehouseman’s lieu provided in the foregoing act is concurrent and cumulative (Howard v. J. P. Paulson Co. 41 Utah, 490, 127 Pac. 285; Crass v. Memphis & C. R. Co. 96 Ala. 447, 11 So. 480), and hence that a bill in equity is a proper remedy for the enforcement of the lien. But in this case appellants did not proceed by bill in equity in the first instance.. On the contrary, they elected to proceed otherwise, and, after having lost possession of the goods through the replevin suit, filed their hill to restrain the prosecution of that suit. The situation in which they now find themselves, therefore, is the result of their own election of remedies; and inasmuch as their rights may bo fully protected without the intervention of equity, as found by the trial justice, the decree of dismissal must be affirmed, with costs.

Affirmed.