Martin v. Porter
Before: Belcher
Synopsis
Replevin by Assignee of Insolvent Debtor. — The assignee of an insolvent debtor cannot maintain an action of claim and delivery against the insolvent to recover personal property which never belonged to the insolvent, and which he never possessed, or refused to deliver to the assignee.
Id. — Judgment on Pleadings — Disclaimer by Insolvent — Sufficiency of Answer.—An answer of the insolvent in such action, disclaiming and denying that he was ever the owner, or in possession of or entitled to the possession, of the property claimed, or ever withheld it, or refused to deliver it to plaintiff, raises material issues, which will preclude a judgment on the pleadings in favor of the assignee.
Id.—Judgment for Possession Only—Appeal by Insolvent — “Party Aggrieved ” — Costs.—A judgment rendered upon the pleadings in such action, in favor of the assignee, for possession of the property claimed, without costs, or an alternative judgment for value, may be appealed from by the insolvent, as a “ party aggrieved, ” notwithstanding his disclaimer of all interest in the property sued for, since, if the denials of his answer were sustained, he would be entitled to judgment that the plaintiff take nothing, and that defendant recover his costs.
Belcher, C. C. This is an action of claim and delivery. The complaint alleges that on the tenth day of October, 1888, the defendant, Howard B. Porter, filed in court his petition in insolvency, and thereafter such proceedings were had that plaintiff was duly appointed his assignee, and qualified as such, and thereupon the clerk of the court duly assigned to him all the estate, real and personal, of the insolvent debtor; “that at the time of filing said petition said defendant was, and long prior thereto had been, and still is, the owner and in possession of a certain quantity of hay, to wit, one hundred and [478]twenty tons, of the value of seven dollars per ton"; that, by virtue of the proceedings and assignment, plaintiff has become and is entitled to the possession of the hay, and has demanded of defendant the possession thereof, but defendant wrongfully and unlawfully withholds possession, and refuses to deliver the hay, or any part thereof, to the plaintiff.
The defendant demurred to the complaint, and his demurrer being overruled, answered. The answer denies that defendant is, or ever was, at any of the times named in the complaint, the owner, or in the possession or entitled to the possession, of the hay sued for, or any part thereof, and it disclaims, on the part of defendant, “ any title to or interest in said hay in any way or to any ^extent whatsoever, or any right or title to the possession thereof, during any of the time or times alleged in the complaint, or at.all." It further denies that plaintiff is entitled to the possession of the hay, or that defendant ever withheld possession or refused to deliver possession thereof to him.
The plaintiff moved for judgment on the pleadings upon the grounds, — 1. That the answer did not state facts sufficient to constitute a defense; 2. That it did not raise any material issue; 3. That the defendant disclaimed any right, title, or interest in the property sued for. The court granted the motion, and the appeal is from the judgment thereupon entered.
1. The theory on which the action was brought evidently was, that the defendant was the owner of the,, hay in question at the time he commenced his proceedings in insolvency, and had wrongfully omitted it from his schedule, and that the title to the hay vested in the plaintiff, under the assignment made to him by the clerk, and that he thereby became entitled to demand and recover its possession.
The complaint was somewhat crudely drawn. It alleges the assignment, and then that the defendant still
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