8 Minn. 467 | Minn. | 1863
By the Gourt.
This was an action of re-plevin, to recover 600,000 feet of pine saw logs, of which Plaintiff claimed to be owner, and entitled to the immediate possession. The Defendant denied the material allegations of the complaint, and set up title to the logs in a third party, and claimed right of possession by virtue of a lien on the same for boomage.
The cause was referred to W. Wilkin, Esq., who reported that the Plaintiff was entitled to judgment for 126,622 feet of the logs claimed, or the value thereof, assessed at $506 48-100. Upon the coming in of the-report the Defendant made a motion for judgment in favor of the Defendant, on the report and case made, the order for judgment in the' report to the contrary notwithstanding. The motion was denied, and from the order entered thereon, the Defendant appeals to this Court.
The Plaintiff urges the objection, that the motion for judgment in favor of the Defendant notwithstanding the order for judgment for Plaintiff, was irregular and improper, and that the Defendant could only appeal from the judgment entered upon the -order.
This view would seem to indicate the correct practice in cases of this kind. Sec. 4, Comp. Stat., p. 564, provides that the report of the referees upon the whole issue, stands as the decision of the Court, and judgment maybe entered thereon, in the same manner as if action had been tried by the Court ; and their decision may be reviewed in like manner.” Upon referring to the proceedings in a trial by the Court, Sec. 41, p. 562, Compiled Statutes, provides that “ in giving the decision, the facts found and the conclusions of law must be separately stated; judgment upon the decision must be entered accordingly.” In the case of trials
We think, however, under the stipulations accompanying the papers, the Respondent is not in a position to urge this objection. It seems that the case was settled by stipulation, and the motion below was made on the report of the referee and case made. There is also a stipulation in regard to the appeal to this Court, waiving the performance of certain things required by statute, and also “ hereby expressly waiving any and all irregularities in the mode and manner of taking said appeal, and making return thereof to the Supreme Court.” We think this stipulation broad enough to cover the error complained of by Respondent. It is an irregularity of form, rather than an error of substance, and it does not ap. pear that any prejudice is suffered by the Respondent in allowing an appeal from an order for judgment, instead of from the judgment itself as perfected of record. The questions of law to be reviewed are the same, in whatever manner the appeal comes up, and under the stipulation we do not feel justi. Tied in dismissing the appeal, as we think the fair inference from the stipulation is, that the parties intended to submit the case to this Court for the purpose of reviewing the errors alleged to have been committed by the referee.
The Plaintiff offered evidence showing, or tending to show, that he purchased the logs in question in 1858, of Heubner & Longaker, upon whose lands these logs were cut without the permission or consent of the owners, by Smith & Sands, in the winter of 1858. These parties also cut logs on lands belonging toother parties than those above-named, in the same vicinity. Smith & Sands used two different marks for the logs cut by them that winter, called “ diamond girdle diamond,” and « S. girdle H.” These logs were drawn and landed on Stanch-
Upon this state of facts, the Defendant urges that the Plaintiff cannot recover in this action. We think the objection well taken. The action under the Code for the “ Claim and Delivery of Personal Property,” is, in substance and effect, the former action of replevin. That was.an action in rem, and by the common law the judgment was pro retorno hábendo, and it is only by statute that a personal judgment can be given in this action. Formerly, the only or chief object of the action was to controvert the legality of a distress. Its scope has been enlarged by later legislation, but the nature of the action is substantially unchanged, and the fundamental principles formerly applicable to the action, and the essential requisites to sustain it must still be recognized. The action of replevin sought the specific goods, and was fruitless unless the goods were seized, or other goods taken from the Defendant by capias in withernam, as a substitute for those distrain - ed, on the distrainor having eloigned the latter beyond the reach of the Sheriff. This provision for seizing other property in lieu of that originally taken by the Defendant, has not been retained in the action provided for under the Code, but a substitute therefor seems to have been adopted by Sub. 3, see. 95, Comp. Stat., p. 545, which provides for an arrest “ in an action to recover the possession of personal property unjustly detained, where the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be
'Identification of the property seeing always to have been regarded as an essential requisite to the maintenance of this action, that is, that the Plaintiff must show the specific property in the hands of the Defendant, to which he claims the right of possession, and not, simply, that he has a certain amount of property, or number of articles of the same kind and value. And so it has been held that replevin will not lie for so many silver dollars or golden eagles; though money in a box, or leather made into shoes, may be recovered in this action if sufficiently identified. Morris on Replevin, 53 ; Snyder vs. Vaux, 2 Rawle, 427 ; 13 Ill., 192 ; 7 Cow., 95 ; 5 Johns., 348.
In Snyder vs. Vaux it was held, that if the Plaintiff fail to prove the identity of the property in question, or, in other words to show that the original materials were the same which belonged to him, he cannot recover. In the case at bar the Plaintiff has been unable to prove that a single log claimed by him was cut upon the land of the parties under whom he claims. And no case is cited by Plaintiff which holds that a party, failing to prove or identify the particular property claimed by him, is entitled to a judgment against the Defendant for an equal number of articles of the same kind and value.
But the Plaintiff claims that he is relieved from the effect of the rule requiring him to identify this property, from the fact that the parties who cut these logs were trespassers, and that the logs were intentionally mingled by them, and that the .burthen of proof was on the Defendant to identify the logs, or prove that none were cut on the lands of Heubner & Long-aker. I think the Plaintiff is mistaken in this position, for two reasons, first, because in this action the Plaintiff can only succeed by establishing his own right to the possession of the property, (incident to which is identification,) and not by showing lack of title in Defendant; and, second, because we find no evidence to sustain the finding of the referee, that these logs were mixed by the parties cutting them with other logs, in such a way as to be undistinguishable.
• Butitis urged by the Plaintiff that this destruction of theiden-tity of the property was by the wrongful act of the Defendant (or those under whom it claims) and therefore it cannot object that the Plaintiff should seize other articles of the same kind and value. But the same reasoning would permit the Plaintiff to do the same thing, even though the Defendant had entirely destroyed the property claimed by Plaintiff. The wrong is certainly as great, where the Defendant has destroyed or removed the property entirely beyond the reach of the Plaintiff, as where he has destroyed the identity of the article, although the thing itself may -actually exist, and be in the possession of the Defendant. If the Plaintiff be entitled to articles in kind, because of the wrongful act of the Defendant,
But I think the doctrine of the “ confusion of goods” not applicable to this case, since I find no evidence in the case that the parties who cut these logs, so mingled them with other logs belonging to them that they were undistinguishable. It clearly appears from the evidence that the logs cut by Sands & Smith in the winter of 1858, were hauled to different landings on Stanchfield brook. It nowhere appears in evidence, that the logs cut on lands owned by Tluebner & Longaker, were piled together with logs cut on lands belonging to other parties. If any inference on the subject could be admitted, it would rather be that they were not so piled, since the hauling from each quarter section, would probably be to such point on the brook as was nearest that quarter section. And equally devoid of evidence is the case, that the logs were mingled by Smith & Sands, or either, in driving. It appears in fact, that the logs were driven by the Plaintiff, that is, that he employed the Thompsons to drive them for him. John Thompson, a witness for the Plaintiff swears that “ they,” (the logs) “ were driven in the spring of 1859. I saw them at the time on Stanchfield brook. I started them and had charge of the drive. I found the logs at the landings and in.
Geo. W. Thompson, another witness for the Plaintiff, also swore, that he drove the logs for the Plaintiff in the spring of 1859, and repeatedly, and in the most positive terms, stated that the logs were driven “ from where they had been landed by the loggers on Stanchfield brock.”
The only testimony tending to show that the parties who cut these logs had anything to do with them after they were delivered at the landings, is that of Henry, who swears (in his deposition) that they were commenced to be driven in the spring of 1858 by Benj. Smith, and were finally driven by Oliver Ames and Geo. W. Thompson to boom at St. Paul.” He mentions neither any number nor any distance to which any of the logs were driven by Smith, nor whether any of the loas claimed by Plaintiff were included in any wbicb he commenced driving. Berry, another witness, who had been employed to survey these logs in August, 1858, says: “'These logs at the time I surveyed them, were lying as follows': from 50 000 to 75,000 feet were on the landings where they were hauled. I know the landings by their being at the end of the roads and the skids which were laid down to place the logs on. The remainder of the logs were lying in the brook, commencing, as near as I can remember, about two miles below the upper landing, on said stream, and scattered along the brook from eight to ten miles, as the brook runs, to which,
This is all the testimony We ánd in the case to sustain the finding, that the parties who cut the logs claimed by Plaintiff mingled them with other logs in such a way as to be undis-tinguishable. And as it appeal’s that the case contains all the evidence and admissions submitted and received on the trial of the action, unless the evidence above cited furnishes proof of wilful confusion of the chattels, such evidence does not exist, or rather, was not produced before the Referee. We think the evidence entirely fails to show that the confusion was made by the parties cutting the logs, and that the evidence tends strongly to show that it was effected by the driving the logs, or at least the inference from the testimony would favor that conclusion.
The order denying the motion is reversed, and judgment ordered for the Defendant.
This appeal was from the District Court of Ramsay County, and not from Washington County, os stated at tho head of the case.