Shepard v. Alden , 161 Minn. 135 ( 1924 )

The petition for rehearing calls attention to a misstatement in the former opinion. Speaking of the action brought by Thomas and Atkinson against Shepard, we said: "No evidence relative to that action had been introduced when defendant made his offer of proof." This is not correct. The judgment roll had been offered in evidence as part of the cross-examination of Shepard and was received subject to objection, the final ruling of the court excluding it being made at the close of the evidence.

Counsel for appellant is right in saying that the legal effect of the judgment must be considered and determined since the question was properly presented to the trial court. The question is discussed in the original briefs and more at length in the supplemental briefs, and we now consider it upon the merits.

Passing by the contention of respondent's counsel that, even if Thomas and Atkinson acquired title to the alleys when their action against Shepard was settled, they neither had nor asserted title when they sold the building to Alden and hence he cannot now assert it for or thrust it upon them, we go directly to the judgment roll to ascertain what was done and what the court determined.

The complaint demanded judgment for $3,875 for rent due from Shepard and rent he had collected. The answer was a general denial followed by a counterclaim for $10,000, the alleged value of the alleys and accessories, which Thomas and Atkinson were charged with having converted. The reply was a general denial. After the case was at issue, the parties stipulated that the court might enter an order determining that plaintiffs' cause of action and defendant's counterclaim had been compromised and settled and that the stipulation and order should forever bar the respective parties from asserting any claim or cause of action against the other by reason of the matters referred to. The judgment entered was one of dismissal with prejudice of each of the causes of action pleaded. It was not adjudged that the alleys had been converted. Nothing was said about the title or right of possession. The alleys were not in the actual possession of Thomas and Atkinson.

The doctrine referred to in the first section of the opinion is confined to cases where it is adjudged that the property of the plaintiff was converted by the defendant and plaintiff is given judgment for its value. By bringing an action to obtain such judgment the plaintiff elects to abandon his property to the wrongdoer and proceed for its value. A satisfaction of the judgment has the effect of a sale of the property as of the date of the conversion. The rule is well stated in Miller v. Hyde,161 Mass. 472, 37 N.E. 760, 25 A.L.R. 42, 42 Am. St. 424; Dearth v. Spencer, 52 N.H. 213; and Acheson v. Miller, 2 Oh. St. 203,59 Am. Dec. 663.

An essential of the foundation for the rule is lacking here. It has never been judicially determined that Thomas and Atkinson converted the alleys to their own use. Shepard alleged that they had converted them, but, either from lack of confidence in his claim or because both parties were uncertain as to the merits of the case, they concluded not to go on with the litigation, each party agreeing to the dismissal with prejudice of the cause of action pleaded.

We are of the opinion that the present case is not within the scope of the doctrine invoked, hence the result of the appeal is the same as before, notwithstanding the erroneous statement of fact in the original opinion.

Order affirmed.