On appeal from judgment of the Ocean County Court of Common Pleas.
For the appellant, Ewart & Bennett (Howard Ewart, of counsel).
For the respondent, Robert A. Lederer.
Before Brogan, Chief Justice, and Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. This is an action in replevin, the subjectmatter being a Ford sedan automobile upon which plaintiff holds a chattel mortgage made and delivered to him by defendant's judgment debtor, Vernon Farrow, on May 18th, 1937, and defendant has a levy made on June 19th, 1937, under an execution issued May 10th, 1937, on the judgment, recovered on October 21st, 1933. The mortgage was conditioned upon the payment of the principal sum of $400, with interest. No definite day of payment was prescribed. According to the affidavit annexed in compliance with the statute, this sum was loaned to the mortgagor by the mortgagee on July 8th, 1935, to be repaid "within thirty days." The mortgage was recorded on the day of its date, and possession remained in the mortgagor.
The essential points now in contention are (a) whether there was compliance with the rule respecting demand for possession of the chattel prior to the commencement of this action, and (b) whether plaintiff's mortgage is void as to defendant for failure of execution in conformance with chapter
166 of the laws of 1931, relating to bills of sale for motor vehicles. Pamph. L. 1931, p. 312; R.S. 1937, 39:10-1 et seq.
The Common Pleas judge, sitting without a jury by consent, ruled that, as regards plaintiff, defendant's "possession of the car was illegal;" that a demand for possession was in fact made before the issuance of the writ, and that, in any event, plaintiff in the particular circumstances "had a right to assume that a formal written demand would have been futile, of no benefit to defendant or obeyed by it;" and that "a chattel mortgage properly executed and recorded is effective upon an automobile * * * even though the provisions" of the act adverted to "have not been performed."
Defendant appeals from the consequent judgment of possession.
The point first made is decisive, and there is therefore no occasion to consider the second.
These are the pertinent facts: The writ of replevin was issued and served upon defendant on November 8th, 1937. It is stipulated that the service was accompanied by "a written demand" upon defendant "for the immediate possession and surrender of said automobile." And the under-sheriff testified that after the writ of replevin, "signed and sealed by the County Clerk" and having attached thereto the written demand for possession, was handed to him for service upon defendant, he communicated by telephone -- at the request of plaintiff's attorney -- with a clerk (who was not an attorney at-law) in the office of defendant's attorneys retained in the matter of the execution of the judgment, and asked whether defendant would "release the car" without service of the writ, and received a reply in the ...