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1935 OK 16
38 P.2d 16
170 Okla. 502
Case Number: 23785
Decided: 01/08/1935
Supreme Court of Oklahoma



¶0 1. REPLEVIN--Dismissal by Plaintiff After Taking Property Under Writ--Rights of Defendant.
Where a plaintiff in replevin, who has taken property into his possession under the writ, fails to prosecute his suit to final judgment, by causing or suffering a dismissal thereof, the defendant has the right, upon application to the court, to have his right of property, and right of possession, inquired into and determined by the court, notwithstanding such dismissal; and in such proceeding, should the right of property and of possession be determined in favor of defendant, he is entitled to judgment for the return of the property, if a return can be had, and, if not, then for its value, together with his damages for the wrongful detention of the property.
2. SAME--Damages--Measure of Damages for Wrongful Taking of Personalty--Reasonable Value of Use of Property.
One of the exceptions to the general rule, as to the measure of damage for the wrongful taking and conversion of personal property, is where the property so taken has a distinct "usable value"; and horses, broken and trained to do work, would have, under ordinary circumstances, such "usable value," and where such property has been wrongfully taken by one, and detained from another, such other has the right to recover as damages the reasonable value of the use of such property during the period of its wrongful detention; and this value is ordinarily to be determined by the ordinary market price of the use of such property at the place of taking during the period of the detention.

Appeal from District Court, Stephens County; Asa E. Walden. Judge.
Action by the Security State Bank of Comanche against Alma Hubbard, wherein defendant filed application for determination of right of property and right of possession. Judgment for defendant, and plaintiff appeals.

H. B. Lockett, of Comanche, for plaintiff in error.
Paul D. Sullivan, of Duncan, for defendant in error.


¶1 This action was begun by the Security State Bank of Comanche against Alma Hubbard, defendant, to recover judgment upon a promissory note for the sum of $4,127.50, with interest from October 15, 1928, until paid, attorney fees, and for the replevin of certain personal property. The petition having been filed October 26, 1928, summons and writ of replevin were issued, and certain personal property seized and taken from possession of defendant in error by virtue of the replevin proceedings.

¶2 Subsequently the record discloses that the plaintiff dismissed said cause of action in open court, and that the court clerk made a minute of the court's order dismissing said cause in open court, and transferred this minute, reflecting the order of the court, to the appearance docket. At the time the case was called for trial, the trial court observed: "I see from the files in this case it is the defendant's application for hearing, claiming certain property rights." Counsel for both plaintiff and defendant proceeded upon that theory, and the defendant assumed the burden of the hearing. The case is presented on appeal by the assignment of error, complaining of error of the court in refusing to give plaintiff judgment for its debt against defendant on its promissory note sued on by plaintiff in said case or any part thereof. Plaintiff in error, as plaintiff below, filed a reply to the application of defendant, in which plaintiff made the following statement: "Plaintiff understood and thought it had dismissed said action but finds upon examination of the records that no order of dismissal was ever made." The record discloses that the bank did not offer in evidence the note or mortgage sued upon in the original petition, but proceeded in the hearing upon the theory that it was a proceeding and an application by the defendant to have his rights of property and right of possession inquired into and determined by the court, notwithstanding such dismissal. In this proceeding the right of property and of possession was determined in favor of defendant, and upon that basis the court entered judgment finding the issues in favor of the defendant and fixed the amount of recovery at $450, together with interest at the rate of 6 per cent. per annum from November 6, 1928, until paid.

¶3 An examination of the record discloses that this judgment and finding is amply supported by the evidence, and, in applying the measure of damage, we think correctly applied the rule as set out in the case of Thomas et al. v. First National Bank of Tecumseh, 32 Okl. 115, 121 P. 272, Ann. Cas. 1914A, 376.

¶4 We therefore conclude that the judgment of the lower court was correct, and that judgment should be, and is, affirmed.