The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1914-02-12
DECISIONS OF The
SUPREME COURT

In the supreme court, state of North
Dakota.
John Kahn, ST., and John Kahn. jr.,
co-partners doing business as John
Kahn, ST., and John Kahn. jr., plain
tiffs and respondents, vs.. l.. B. Gar
mas, defendant and appellant.
l. Where, in an action to recover
the possession Of personal property.
for the purpose of f~oreclosing a chattel
the ownership Of the notes secured by
such mortgage, and such issue is de-
termined by the court adversely to
the contention to the ownership Of the
plaintiff, and the jury is instructed to
return a verdict against the plaintiff
and for a dismissal of the action, the
judgment is res adjudicata, as to the
question Of ownership, in a subsequent
suit brought by the mOrtgagor n
against such plaintiff for the unlawful
conversion of the property covered by
the mortgage in such prior proceed
ings.
2. Where A made and delivered to
3 notes secured by a chattel mortgage,
and G afterwards sought to ~foreclose
such mortgage and took possession Of
the property for such purpose, and in
such proceeding a judgment was rend-
cred dismissing the action, on the
ground that the ownership OF the
notes and mortgage was not in c., an
action for conversion can be brought
against c for such illegal seizure, even
though no tender of payment been
made to B. and subsequent to the prior
action and the unlawful seizure G has
obtained the possession n title to
said notes.
3. Where c seeks to foreclose a
chattel mortgage without having any
right or title to the notes which the
same secure or in and to the said mort
gage, and preliminary to such fore
closure wrongfully replevies and OBJ
tainS possession of such property, the
mortgagor may afterwards u him in
conversion for such unlawful seizure
and Is not barred therefrom by the
mere fact that in the original replevin
proceedings he merely prayed for a
dismissal of the action with costs and
| did not ask for a return of h said
property or for the value thereof.
4. 1t is not an abuse Of discretion
for trial court to permit the plaintiff
to file an amended and substituted
complaint changing the character OF
the plaintiffs from individuals to a
partnership. where the members Of the
partnership and the original plaintiffs
are the same persons, and even though
no written notice of such amendment
has been given to the defendant, but
the defendant IS present in court by
himself or his counsel and has an OPP
portunity to object to and to eNcep'
to such amendment, and where upor
the allowance of such amendment NJ
suggestion is made to the presiding
Judge that the defendant has a, coun'
ter claim against the partnership which
he did not have against the partner!
as individuals, Or that his defense Ii
otherwise materially preiudiced.
(Syllabus by the court.l
Appeal from the district court o
Eddy county, Coffey, J.
Action for conversion. Judgment TO
plaintiffs. Defendant appeals.
Affirmed. Opinion of court by Bruce
Burke. T.. being disqualified, did no
participate.
Maddux & Rinker, New Rockford
N. D., attorneys for defendant and ap
pellanf.
j. al. Manley, New Rockford, n. p
and Rnauf 81 Krauf, Jamestown, 4
D., attorneys for respondents.