(dissenting).
After having read carefully the opinion on motion to dismiss the appeal in the instant case, ably expressed by Mr. Justice Badt and in which Mr. Justice Eather has concurred, I cannot find myself sufficiently in agreement to justify concurrence, and, therefore, I am impelled to dissent.
In view of the fact that the defendants, Childers and *602Vrenon, in the lower court were made parties and sued by the plaintiff, Mrs. Leonard, and that in such supplementary proceeding their interest as to 41 milk cows and 2 bulls, and for accounting of the proceeds of the sale of milk and sales of certain calves from said cows during the period of defendants’ alleged unlawful possession of them, were involved, and in which, by the judgment of the lower court, same were ordered to be returned, does not satisfy me to hold that the motion to dismiss the appeal should be granted, without such appeal being fully argued and determined by this court.
It is true that Childers and Vrenon, in the midst of the proceedings in the court below, were led to admit affirmatively that, in effect, they had parted with their possession of said cattle, and that, in effect, they had disclaimed title or possession of them. I do not believe, however, that solely because of such disclaimer by Childers and Vrenon, that equitably and fairly such acknowledged transfer of possession of the cattle from Belanger to Childers and then from Childers to Vrenon, and their subsequent transfer from Vrenon to the Bowlers (the latter not being parties to the proceeding) necessarily should have precluded, because of such transfer, the determination of the other existing obligations that had arisen as to the several transactions between these respective parties, and which, assuming that certain factors were disclosed from the evidence at the proceeding, may properly, from a legal standpoint, justify further consideration as between the rights of Mrs. Leonard and those of Childers and Vrenon. Mrs. Leonard, formerly Mrs. Belanger, and Mr. Belanger were husband and wife, and divorce was pending. A restraining order preventing Belanger from making sales of milk from the cows and collecting the proceeds, had been released, and it may have been that Belanger took advantage of such restraining order having been released, and may have reported to Childers that he had authority, as agent for Mrs. Leonard, to sell such cattle to Childers, and Childers may have believed him, and the transfer may have *603resulted. Relying upon such representations, Childers orally warranted the cattle to Vrenon, and Vrenon, by express warranty, transferred the cattle to the Bowlers. The rights of innocent third persons may have been involved, and such may not have been fully determined in the court below, and valid objection may have resulted, which should be further determined.
January 11, 1951.This justice has been fully occupied in writing opinions in other cases, and has not had an opportunity fully to read and consider the evidence adduced in the court below in such supplementary proceeding. Notwithstanding that fact, he feels impelled, in view of the opinion of the majority of the justices of this court, that he not delay further the filing of the majority opinion. It seems to me that in this proceeding, complicated as it is, and involving serious conflicts of the evidence, that there should not be a dismissal of the appeal, but that, on the contrary, equity and justice, in my opinion, require a full consideration of the appeal upon its merits, particularly as to the questions of law involved.