The opinion
BAYLESS, J.
(dissenting). I feel compelled to state the views that cause me to dissent to the opinion of the court in this case.
The gist of the court’s opinion is: that a claimant in a replevin proceeding may acquire title to the note and chattel mortgage, upon which his seizure of personal property was based, after the institution of his action and may, thereby, make a title to or special ownership in the personal property that he did not possess when the action was instituted.
Such a rule is contrary to the overwhelming weight of law. 54 C. J. 435, § 46; 23 R. C. L. 866, § 15, where it is said:
“The real test then as to whether an action can be maintained turns upon the question whether the plaintiff is, at the time of the institution of the suit, entitled .to the immediate possession of the property claimed.”
Cobbey on Replevin, where it is said, section 94:
“The right to the possession at the time of bringing the action is essential to recovery.”
And in section 96:
“The plaintiff in replevin must prove a right to the possession at the time the action was commenced. In order to maintain an action for the recovery of chattels in specie, the plaintiff must have, as against the defendant, a present, unqualified right to the possession of the chattel, . . .” (Shinn on Re-plevin, §§ 30 and 31; Wells on Reple-vin, § 39; and the comprehensive annotation on the subject in 125 A. L. R. 612, following the quotation of our decision in White v. Tulsa Iron & Metal Corp., 185 Okla. 606 , 95 P. 2d 590 .)
The rule announced in the present opinion is flatly contrary to the decisions of this court, as is evidenced by the attempt in the opinion to differentiate this case from Tulsa Rig, Reel & Mfg. Co. v. Arnold, 64 Okla. 160 , 166 P. 135 ; and as can be seen by reading our decisions in First National Bank v. Kreuzberg, 75 Okla. 97 , 181 P. 717 ; Williams v. Williams, 87 Okla. 195 , 209 P. 769 , touching and deciding the precise issue, which are ignored in the court’s decision and stand out in contradiction to it and bring about the unhappy result of confusion in our own decisions.
The very nature of the remedy of re-plevin dictates that the right of possession must exist at the commencement of the action. However, the logical concept that underlies all legal and equitable actions is that the party asserting a claim or right should possess the claim or right at the commencement of the action. Judicial power exists to adjudicate controversies between persons over essential and substantial and personal rights. It has always been antipathetic to the notion of our judicial processes that strangers or intermedlers
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bring or defend or participate in any manner in court proceedings; and especially have the courts refused to lend their processes to speculative matters. It is said in 47 C. J. 23, § 39, in discussing the interest one must have to assume the position of a party:
“It is axiomatic that a plaintiff in a court of law, in order to maintain his suit, must have the legal title to the chose in action at the time he instituted his suit.”
Attention is directed to American Investment Co. v. Baker, 122 Okla. 10 , 250 P. 76 , holding that a cause of action for the recovery of money due on contract must be valid and subsisting at the commencement of the action, and specifically holding that a person who was only part owner of the claim could not institute the action to recover all and supplement his pleadings thereafter by showing that he had, since the commencement of the action, acquired the outstanding interest and was “now” the owner of the entire claim.
Attention is directed to White v. Tulsa Iron & Metal Co., supra, where a partner, instead of suing in replevin, chose to sue in conversion for the value of the property, and subsequently acquired the interest of the other partner. It was held that a demurrer to his evidence was properly sustained, since, in order to prevail, his evidence must show that the claim he asserted was a valid and subsisting claim owned by him at the commencement of the action.
It will be observed in many of those cases that the plaintiff sought to bolster his position in court insofar as his pleadings were concerned, as Jones did in this case, by filing supplemental pleadings, and that in every instance this was not allowed.
This court now undertakes to say that because the replevin proceedings properly brought are comprehensive enough to permit the joinder therein of issues, legal and equitable, and the settlement thereof, that it is thereby meant that an action improperly brought may be cured. The cases cited relate to the conflicting claims of others; and in some instances relate to situations where, during the pendency of an action properly brought, interests change hands. If this court has heretofore given rise to a modification of the well-nigh universal rule stated by the authorities I have just cited, the cases heretofore decided by this court to the contrary should be expressly overruled.
The rule which I have said applies to replevin proceedings, actions on contracts, actions for damages in conversion, etc., also applies to actions in ejectment, 19 C. J. 1047, §§ 23 and 24; in actions on bills and notes, 8 C. J. 820, §§ 1083 et seq.; in forcible entry and detainer proceedings, 36 C. J. 654, § 1863; and in all equity actions, 21 C. J. 304, § 304, dealing with “real party in interest.”
I therefore dissent.
GIBSON, V. C. J., concurs.