Belknap Savings Bank v. Robinson

| Conn. | Jul 19, 1895

Hamersley, J.

The sixth reason of appeal assigns error, “ in holding that the action of replevin could be maintained in this State against the defendant, for goods which were not proved to have been detained by him in this State.”

The claim seems to be that replevin is a local action, which can only be brought to the court within whose territorial •jurisdiction the property described in the writ is situate at the commencement of the action; that the allegation of the particular place where the property is wrongfully detained is a jurisdictional fact which must be alleged and proved, and therefore that no judgment can be given for full damages under | 1333 of the General Statutes, except in respect to property proved to have been wrongfully detained at the place alleged at the commencement of the action; and that § 1333 applies •only to such property which has been destroyed or concealed before the service of the writ. As under our law the date of the commencement of the action is the date of service, such a construction would go far towards nullifying the statute.

In making his claim the defendant has apparently been misled by a name. The statute which authorizes this action provides an entirely new remedy for complete redress in a single action, when one wrongful act has invaded the right to more than one article of property. In this State, “ action of replevin” is the name given, to a purely statutory remedy for the enforcement of rights specified by statute in the manner prescribed. As was said by Chief Justice Stores in Fleet v. Lockwood, 17 Conn., 283, 239, “ Replevin is not, in this State, a common law action, but is given solely by statute.” The proceedings of our courts must be governed by the statute, rather than by the rules which apply to common law actions of replevin. Watson v. Watson, 9 Conn., 141, 10 id., 76; Brown v. The Chicopee Falls Co., 16 id., 87, 89; Howard v. Crandall, 39 id., 213, 214; Bowen v. Hutchins, 18 id., 550.

In Ludlow’s Code of 1650, the article on “ Attachments ” enacts that goods of the defendant may in certain cases be attached on mesne process, upon the plaintiff giving sufficient security; and further enacts that every man may have liberty to replevy his cattle or goods impounded or seized, (except upon execution after judgment) by giving like security to satisfy such damages as his adversary shall recover. 1 Colonial Records, 511. In the Revision of 1672, (the first book of laws printed) replevin in such cases is authorized in a separate statute; and at the end of the statutes the special form prescribed for replevin is given. This form is included in “ An Act prescribing Forms,” etc., which first appears in the Edition of 1702. In the Revision of 1821, replevin in cases of cattle impounded and goods'attached, was authorized; and the proceedings regulated with more particularity. In 1863, a writ of replevin was authorized in ease of any property in any manner taken from the owner and unlawfully detained. The statutory actions of replevin, until 1863, were confined to property taken under the forms of law, that is, to cattle impounded and property attached, and were in the nature of an action of trespass. The Act of 1863 provided that the writ of replevin might be used to enforce rights of action which related to any property in any manner unlawfully detained, and the action thus authorized was in the nature of an action of trover. It was decided under this Act that property held on execution was not “ unlawfully ” detained, and afterwards the word “ wrongfully ” was substituted for the word “ unlawfully,” so as to give the statute a more extensive meaning and comprise “any detention which does wrong to another,” including property held on execution. Hilton v. Osgood, 49 Conn., 110" court="Conn." date_filed="1881-05-15" href="https://app.midpage.ai/document/hilton-v-osgood-6581233?utm_source=webapp" opinion_id="6581233">49 Conn., 110, 113.

In the Revision of 1866, the law regulating replevin was stated with the greatest particularity; each ground for the writ, viz : cattle impounded, property attached, goods otherwise unlawfully detained, — was separately treated, and a distinct form of proceeding established for each. In the Revision of 1875, the special provisions relating to the form of proceeding were consolidated, and one form prescribed which might be used for either of the different grounds of action ; but the law defining the nature of replevin in the three classes of cases so included under one form of proceeding, was not changed by such consolidation. McDonald v. Holmes,. 45 Conn., 158.

By the common law of this State, an action of trover was a proper action for trying the question of right between one person claiming lawful possession of goods, and another person, claiming to be their owner and entitled to immediate possession, and a wrongful exercise of dominion by'the first; in. such action the question of right was the material thing, and actual possession of the goods by the defendant at the commencement of the action, wholly immaterial. This remedy was defective in all cases where legal damages were not adequate compensation for the loss of specific goods, or the defendant was irresponsible. One operation of the law of 1863. was to supply such defect, by establishing an alternative statutory remedy, whereby the question of right could be tried and the plaintiff, upon proving his claim, secure possession of his goods with damages for their wrongful detention. But the Act did not provide for the case where, by a single conversion, divisible property was acquired, and portions of it could not be found at the service of the writ. In such case the wrong which gave rise to a single ground of action would. still require for its redress two remedies instead of one. And so the following year an Act was passed providing that both these remedies might be included in one proceeding (Public Acts of 1864, p. 28), so that the plaintiff by means of one trial might obtain complete redress for one wrong. The name given to this proceeding does not alter its nature and effect as determined by the statute, and the rules peculiar to the ancient action of replevin under the English common law do not apply to this statutory action, unless by way of analogy when based on principles recognized by our own common law as applicable to such action. It is evident that in such a proceeding the essential cause of action is a wrongful exercise of dominion over the personal property of another, and is in the nature of a transitory action ; indeed, the form prescribed for the declaration implies this, and by express provisions of statute (§ 964) the action may be commenced in any county where either plaintiff or defendant resides, and the writ may run into any county (§ 1324).

If all the property which a plaintiff may be entitled to recover is without the State, or its situation unknown, of course the statutory action of replevin is inappropriate: in such case the complete redress contemplated by the statute is impossible, and redress in damages only, should be had through the action of trover; but if any portion of the property acquired by the same wrongful acts is within the State, and its situation known, then trover may be inadequate, and resort for complete redress may be had to the alternative statutory remedy.

In replevin for cattle impounded, an allegation of the town where they are taken may be required, but the particular place of caption is immaterial. Strong v. Lawler, 37 Conn., 177" court="Conn." date_filed="1870-08-15" href="https://app.midpage.ai/document/strong-v-lawler-6579089?utm_source=webapp" opinion_id="6579089">37 Conn., 177. But in replevin for goods detained, under the Acts of 1863 and 1864, it is difficult to see how an allegation of the place at which they were detained is material, unless to define the authority of the officer in replevying the goods, or to give jurisdiction where the defendant is a non-resident and no personal service is made. Bowen v. Hutchins, supra.

There is little, if any, analogy between such a statutory proceeding, and the common law action of replevin. The nature of the proceeding must be sought in the language of the statute. We think the language of § 1333 of the General Statutes, which contains the Act of 1864, applies to the facts as found by the court in this case; that the fact that the wrongful detention of the goods described in the writ is based on an act of conversion which took place in another State, is immaterial, Peters v. Stewart, 45 Conn., 103" court="Conn." date_filed="1877-05-15" href="https://app.midpage.ai/document/peters-v-stewart-6580541?utm_source=webapp" opinion_id="6580541">45 Conn., 103, 109; and that proof of the wrongful detainer of all the goods described in the writ, including that portion of the goods not replevied, is sufficient to support a judgment, without showing that such goods not replevied were in this State while so wrongfully detained. This is the first time we have been asked to consider the effect of the Act of 1864; but judgments under it have been rendered at nisi prius, and have been unquestioned. We cannot doubt that the present judgment is justified by the statute.

The other reasons of appeal present no question of law which calls for discussion. If the first, second and third reasons mean that the facts found proven by the court are legally insufficient to support the judgment, the claim cannot be sustained; and moreover no question of law is presented with sufficient distinctness to demand consideration. Watson v. Watson, 10 Conn., 76; General Statutes, § 1135. The fourth reason assumes a fact not shown by the record. The fifth reason, so far as it raises a question of law, is insufficient ; proof of demand is evidence, but not the only evidence, of wrongful detention. Brown v. Poland, 54 Conn., 313" court="Conn." date_filed="1886-12-17" href="https://app.midpage.ai/document/brown-v-poland-6582089?utm_source=webapp" opinion_id="6582089">54 Conn., 313, 316. The seventh reason has no substance and was not pressed in argument.

The defendant took his appeal before the decision of this court on the Act of 1893, chapter 174, was announced; and evidently the reasons of appeal were drawn, and the record made up, under an entire misapprehension of the real nature of an appeal. Styles v. Tyler, 64 Conn., 432" court="Conn." date_filed="1894-07-09" href="https://app.midpage.ai/document/styles-v-tyler-6583287?utm_source=webapp" opinion_id="6583287">64 Conn., 432; Meriden Savings Bank v. Wellington, 64 id., 553; White & Co. v. Howd 66 id., 264. The finding of the trial court appears to contain all such facts as the record shows to have been found by the court, and to be necessary for tbe proper presentation of questions of law arising in the case. The defendant suggests no reason for asking a correction of the finding in this respect, nor do we understand such request to have been made on argument.

There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.