Opinion
Rehearing Denied Feb. 23, 1971.
A. E. Radinsky, Denver, for plaintiff in error.
Harry Sobol and Bernard Sobol, Denver, for defendant in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is an action for replevin of an automobile. The plaintiff in error, Union Trust Company, hereafter referred to as the 'Trust Company,' was unsuccessful in its action at trial and now appeals from an order dismissing its complaint and awarding damages to the defendant in error, Advance Loan Company, hereafter referred to as the 'Loan Company.' The appeal centers upon two issues: (1) whether the trial court erred in holding that the Trust Company was not entitled to recover the automobile, and (2) whether the evidence supports the amount of damages awarded.
Simply stated, the facts of this case disclose that the Loan Company lent money to a couple, hereafter referred to as 'the Maynes,' for the purchase of the automobile in question. The Maynes gave a note to the Loan Company secured by chattel mortgage on the automobile. Thereafter the Maynes encountered financial difficulty in paying their debts, including the installments due on the automobile. At this point, the Maynes turned to the Trust Company and made a general assignment of their property to the Trust Company as an assignee for the benefit of creditors under the provisions of C.R.S.1963, 11--1--1, et seq. The Maynes, however, retained both possession and use of the automobile in question.
The Loan Company, after default in payment, repossessed the automobile in accordance with the terms of the chattel mortgage. The Trust Company then filed an action in replevin posting a bond of $500. The automobile was handed over to the Trust Company, which immediately delivered it back to the Maynes for their use. The Loan Company then answered the complaint in replevin, denied the Trust Company's right to the automobile in question, and counterclaimed for damages caused by the replevin of the automobile.
Trial was held to the court which, after hearing the evidence, held that the Trust Company was not entitled to possession of the automobile and dismissed the complaint in replevin and awarded defendant loan company damages in the amount of $500 plus interest and costs for the wrongful taking of the automobile.
The Trust Company maintains that the general assignment of property included the automobile. We disagree. Under C.R.S.1963, 13--6--9, et seq., which is controlling here, a transferee of the vehicle does not obtain any enforceable rights to the motor vehicle until he has obtained the certificate of title duly transferred to him in accordance with the statutory requirements, which among other steps, require that there be a specific assignment of the title itself to the transferee, C.R.S.1963, 13--6--9. The Trust Company argues that C.R.S.1963, 13--6--12, which provides for transfers by operation of law, means that it was not required to obtain a certificate of title in order to be the legal owner. We disagree. Even assuming the cited statute applies to the Trust Company in this case, the requirements are clear that the person or company seeking to avail himself of these provisions must apply for a certificate of title in accordance with C.R.S.1963, 13--6--14, which the Trust Company did not do in the instant case; and accordingly could not compel delivery of the vehicle through a replevin action. The trial court was correct in dismissing plaintiff's complaint.
The Trust Company further argues that the evidence here would support a finding of only nominal damages, if any, not the $500 actually awarded.
In its findings the trial court specifically held that it was impracticable to order return of the vehicle to the Loan Company and, in lieu of this return, the trial judge awarded money damages in the amount of $500, which action is permissible under R.C.P.Colo. 104(m).
The Trust Company now argues that no evidence was presented to substantiate such an award. However, the Trust Company did file a $500 bond at the initiation of this suit. Startzell v. Bowers, 88 Colo. 135, 292 P. 601, holds that where defendants are entitled to damages equal in value to a wrongfully replevined automobile, then the bond filed by the plaintiffs amounts to an affidavit by them as to the value of that automobile. Consequently, the court's award of $500 to the Loan Company in the instant case is not error since, in effect, the Trust Company had stipulated that this is the equivalent value of the automobile.
In view of the above opinion, the issues raised by the defendant need not be discussed.
Judgment affirmed.
DWYER and ENOCH, JJ., concur.