I dissent. The facts are stated in the prevailing opinion.
If the plaintiff, Johnson, were the owner of the truck body levied upon by the sheriff, he is entitled to recover and the judgment should be affirmed.
Under the contract held by the C.I.T., Miner never became the owner of the truck or body. If at the time the C.I.T. took possession of the chassis and failed to get the truck body because it could not be found, under any construction title would not pass to him.
Under the contract title was not to pass to Miner until payment. Under a cancellation or rescission of the contract Miner was in no better position. Title still remained in the C.I.T. Had title passed to Miner, and thence to Johnson no protection could be claimed by the sheriff under the writ of execution whether the judgment in pursuance of which it was issued were valid or void. Manifestly, and under the prevailing opinion it must be conceded the judgment was void. None of the parties can legally base any claim or defense thereon. Had the judgment been entered by the Court *Page 498 instead of by the Clerk the mere irregularity in its form would not invalidate it.
In this state there is but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs. R.S.U. 1933, 104-1-2. The common law action of conversion or trover is not provided for under our statutes. The action known as claim and delivery approaches a combination of the common law actions of replevin and trover or conversion. The bringing of an action for the recovery of possession of personal property or the value thereof could not by any process of law or reason pass title to the property in question. If such were the case, one would be in a perilous situation to attempt to recover possession. The same would be true if the entry of judgment alone had a like effect. A void judgment leaves the parties where they were, before the judgment was entered.
The statute provides that in an action to recover the possession of personal property, plaintiff may have judgment for the possession of the property or the value thereof in case delivery cannot be had. He may also recover damages for the detention of the property. R.S.U. 1933, 104-30-11.
So whether the judgment is void or valid up to the time of entry there can be no passing of title to the property the subject of the action. The judgment in the instant case is void regardless of what position may be taken in relation thereto.First National Bank of Coalville v. Boley et al., 90 Utah 341,61 P.2d 621; Nounnan v. Toponce, 1 Utah 168.
Assuming that there were a valid judgment for the return of the property or the value thereof such a judgment is not a double judgment and the plaintiff may pursue the property or seek satisfaction under an execution for the value thereof and for damages. Even the levying of an execution for the purpose of satisfying the damages element of the judgment or part of the value of the property could not constitute a passing of title until the value thereof and damages were *Page 499 fully paid. Such a construction would be wanting in due process and would amount to depriving one of title without compensation. The contract provided title should not pass until the agreed purchase price was fully paid. To pass title by the entry of a judgment or issuance of an execution and partial satisfaction of a judgment, even if possession could be had, would render the bringing of such an action precarious. In addition how would stand the title where only part was recovered or only part satisfaction of the money part of the judgment? Am. Eng. Ann. Cas. Vol. 15, Note p. 454; Miller v. Hyde, 161 Mass. 472,37 N.E. 760, 25 L.R.A. 42, 42 Am. St. Rep. 424; Lovejoy v.Murray, 3 Wall. 1, 11, 18 L. Ed. 129, 132.
An analagous situation was ably discussed by Mr. Justice Wolfe in the case of Kunz v. Nelson, 94 Utah 185, 76 P.2d 577, 581, 115 A.L.R. 1322. It was there said:
"* * * While an alternative verdict is quite in order, a general verdict, finding for the plaintiff and the value of the property, is sufficient to support a judgment in the alternative for a return of the property or its value. Hobbs v. Clark,53 Ark. 411, 14 S.W. 652, 9 L.R.A. 526; Etchepare v. Aguirre,91 Cal. 288, 27 P. 668, 929, 25 Am. St. Rep. 180. The verdict could not decree a return. The judgment would decree a return of those articles returnable and decree judgment for the balance according to the values found by the jury. The judgment in this case failed to do that but was for the value only. Ordinarily, in a replevin suit, the judgment should be for the return of the property or for its value in case it is not returned and damages for its detention. But, as we shall later see, the rule is not inflexible. The very wording of section 104-30-11 is that judgment `may be' (not `shall be') `for the possession,' etc.
"It has been consistently held that the judgment does not need to be in the alternative where it appears that the property cannot be returned. Dolinsky v. Williams, supra [56 Utah 186,189 P. 873]; 23 R.C.L. 939; Larson v. Hanson, 26 N.D. 406,144 N.W. 681, 51 L.R.A., N.S., 655. And, where it appears that the property is returnable and the judgment provides only for the return of the property and not its value in case it is not delivered, it has been held that the judgment is good if the prevailing party makes no objection because the value is for his own benefit and he may waive it if he chooses and take the judgment merely for the return of the property. Thompson *Page 500 v. Scheid, 39 Minn. 102, 38 N.W. 801, 12 Am. St. Rep. 619;Peterson v. First National Bank of Bay Point, 101 Cal. App. 532,281 P. 1104; Stroud v. Morton, 70 Mo. App. 647; CentralMissouri Trust Co. v. Wulfert, 198 Mo. App. 85, 199 S.W. 724;Wheeler v. Jones, 16 Mont. 87, 40 P. 77.
"This would seem to be in accordance with the general principal that in replevin actions a judgment is satisfied by a return of the property in as good condition as when detained. But some cases make the bland statement that the alternative judgment is for the benefit of the party prevailing and that he can waive the defect of its not being in the alternative. It must be admitted that in all these cases which have been examined by us where this statement was made the judgment omitted the value arm of the alternative and the goods were intact so that they could be returned. And the prevailing party was willing to accept their return, Whetmore v. Rupe, 65 Cal. 237, 3 P. 851; Farmers'Loan Trust Co. v. Commercial Bank of Racine, 15 Wis. 424, 82 Am. Dec. 689; Kloety v. Delles, 45 Wis. 484; but by Smith v. Coolbaugh, 19 Wis. 106, the judgment cannot be for the value only where the party claims a return, Caldwell v. Ryan,210 Mo. 17, 108 S.W. 533 [16 L.R.A., N.S., 294], 124 Am. St. Rep. 717, 14 Ann. Cas. 314. In Griffith v. Reddick, 41 Cal. App. 458,182 P. 984, 985, it was held: `The Code provision (Code Civ. Proc. §§ 627, 667) entitling the prevailing party in proceedings under claim and delivery to an alternative judgment for the value of the property in case a return cannot be had, is solely for the benefit of the prevailing party. It does not, where the judgment is for a redelivery to the defendant, or for the value if a return of the property cannot be had, give to the plaintiff the privilege of either redelivery or payment of the value at his option.'"
There is no basis for an estoppel. If Miner had no title, Johnson had none. The pursuance of alternate remedies against Miner under a void judgment could not raise an estoppel in favor of Johnson a third party and not a party to the action in claim and delivery. Much less ground is there where a plaintiff is in good faith pursuing a remedy under a void judgment in so far as passing title. The passage of title can get to Johnson by no other process or means than through Miner. Surely, the law will not aid a wrongdoer in an action ex delicto by raising an estoppel in his favor and making such available to a third party who happened to be another victim of the wrongdoer. As well say the sheriff is *Page 501 protected in taking the property of other than the judgment debtor under a valid execution or the property of any one under a void execution as to say Johnson acquired title by estoppel under a valid judgment or a void judgment against Miner.
Judgment should be reversed.