Wilkins v. Willimon , 128 S.C. 509 ( 1924 )


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  • I am unable to agree that the proposition upheld in the majority opinion warrants a reversal. Aside from the consideration that the point sustained is not properly raised by the exceptions. I *Page 531 do not think the conclusion reached is in accord with certain prior adjudications of this Court, which I see no sound reason for discrediting.

    In the case of Reynolds v. Philips, 72 S.C. 32, 34;51 S.E., 523, 524, this Court, speaking through the present Chief Justice, said:

    "The statutory action of claim and delivery is practically a combination of the former actions of replevin and trover. Replevin was an action to recover the possession of specific chattels, together with damages for their unlawful detention. Trover was an action for damages arising out of the unlawful conversion of personal property. In so far as the plaintiff's action sought to recover the possession of the chattels it partook of the nature of replevin; but in so far as it claimed the value of the property and damages it resembled the action of trover. The action of claim and delivery is even more assimilated to the action of trover than to the action of replevin. Tittle v. Kennedy, 71 S.C. 1. The complaint, in effect, states two distinct causes of action though in the alternative. The dual nature of the action finds expression in the judgment which the plaintiff is entitled to recover in such action. The alternative judgment for the value of the property will be enforced as effectually as the judgment for the recovery of the possession of the chattel. Archer v. Long, 47 S.C. 556; 25 S.E., 84.

    "The plaintiff has the right to elect whether he will bring his action to recover possession of the specific chattel, or for damages for the unlawful conversion. Richey v. Du Pre,20 S.C. 6. Not only is he entitled to exercise this right before commencing his action, but he may make his election thereafter. It may even be made in the Circuit Court when there is an appeal from the judgment rendered in the magistrate's Court. Joplin v. Carrier, 11 S.C. 327. Williamsv. Irby, 16 S.C. 371. The reason why the plaintiff is permitted to waive or withdraw one remedy and still recover upon the other, is because they are distinct and independent." *Page 532

    Under the foregoing views, it would seem clear that the plaintiff in her former action of claim and delivery had the right to elect to recover a money judgment for the amount of damages sustained as the result of an unlawful conversion of the property in question. Where the plaintiff is a mortgage creditor, the amount of damages thus sustained obviously could neither exceed the value of the property nor the balance due on the mortgage debt, which latter amount would represent the plaintiff's special interest in the property.Greene v. Washington, 105 S.C. 137, 142;89 S.E., 649. While the amount recovered in the action here in question appears to have been the amount of the mortgage debt, it was an amount less than the alleged value of the automobile and represented the plaintiff's special interest in the property. Even if the plaintiff had not an absolute right in the claim and delivery action to elect to recover damages as for a conversion, to the extent of her special interest in the property, we see no reason why the defendant, W.M. Willimon, as a competent party to that action could not have waived his right, if any, to insist upon the recovery by plaintiff of a judgment for the delivery of the specific property or for its value and to have consented to the recovery of a money judgment for a sum less than the value of the chattel. 34 Cyc., 1544; Richey v. Du Pre, 20 S.C. 6. Every presumption must be indulged in favor of the regularity of the proceedings and of the validity of the judgment rendered. Bardin v. Drafts, 10 S.C. 493;Parish v. Smith, 66 S.C. 424; 45 S.E., 16. I am, therefore, of the opinion that the form of the verdict and judgment rendered in the so-called claim and delivery action does not constitute such defect or infirmity apparent on the face of the record in that cause as entitled the defendant R.C. Willimon, in this action upon the redelivery bond, to impeach that judgment by collateral attack. If so, as the Circuit Judge correctly held, the case is controlled by the principles announced and applied in Thompson v. Joplin, 12 S.C. 580; *Page 533 Parish v. Smith, 66 S.C. 424, 431; 45 S.E., 16, andBolt v. Milam, 110 S.C. 399, 401; 96 S.E., 614, and the appellant's contention should not be sustained.

    MR. CHIEF JUSTICE GARY concurs.

Document Info

Docket Number: 11424

Citation Numbers: 122 S.E. 503, 128 S.C. 509

Judges: MR. JUSTICE COTHRAN.

Filed Date: 4/21/1924

Precedential Status: Precedential

Modified Date: 1/13/2023