
    W. Fred Kisner v. Commercial Credit Company
    (No. 7798)
    Submitted April 10, 1934.
    Decided April 17, 1934.
    
      Deveney & JPwrbee and Harrison Conaway, for plaintiff in error.
   Lite, Judge:

This is an action for conversion of personal property. Defendant, Commercial Credit Company, complains of a judgment against it, on the verdict of a jury in favor of plaintiff, W. Fred Eisner, for $300.00.

August 12, 1931, Cather Robinson Motor Company of Fairmont, West Virginia, delivered an automobile to Eisner under a conditional sales contract. He agreed to pay the deferred purchase price of $704.00, evidenced by note, in sixteen equal monthly installments. The contract provided that upon his default in the payment of any installment, the remaining purchase price would become due and payable, and tbe bolder of tbe note would be entitled to re-take tbe property without legal process or notice and retain or sell it in accordance with tbe conditional sales act. Immediately upon tbe sale by tbe motor company to plaintiff, it assigned tbe contract to tbe Commercial Credit Company. Tbe plaintiff baying failed to pay the installments regularly, tbe credit company, on May 20, 1932, because of default in tbe payment of tbe installment due May 12th, instituted an action of deti-nue before a justice of tbe peace to recover tbe car. It was immediately taken into possession by tbe officer serving tbe process and delivered to tbe company. Judgment was rendered by tbe justice in favor of tbe credit company and Eisner appealed. Tbe jury having found, upon trial of the appeal, that tbe company was entitled to tbe possession of tbe automobile and that its value was $450.00, tbe circuit court dismissed tbe action on tbe ground that tbe amount in controversy exceeded tbe jurisdiction of tbe justice. Meanwhile, tbe company had sold tbe car, in accordance with Code 1931, 40-3-19. This action was then brought upon tbe theory that tbe company was liable for conversion as a sequence to tbe dismissal of tbe detinue action. There is no appearance, in this court, on behalf of plaintiff.

As the company was entitled to the property without legal process, it certainly incurred no liability in obtaining possession by abortive process. “If one has the right to take possession of personal property without legal process, it is difficult to imagine upon what theory be could be deprived of that right, if be attempted to exercise it, by legal process which subsequently turned out to be void. In either case plaintiff’s position would be precisely the same.” Mendelson v. Irving, 155 App. Div. 114, 139 N. Y. S. 1065. “An action for taking and detaining personal property can only be maintained where plaintiff was the owner or entitled to the possession of the property at the time of the taking.” Wilson v. Live Stock Co., 153 U. S. 39, 38 L. Ed. 627.

Tbe judgment is reversed, tbe verdict set aside and a new trial awarded.

Judgment reversed; verdict set aside; new trial aioarded.  