13 Wis. 17 | Wis. | 1860
By the Court,
This action of replevin was originally commenced before a justice of tbe peace under tbe provisions of chap. 88, R. S., 1849. Tbe defendant in error stated in substance, in bis complaint, that be was tbe owner of certain
The counsel for the defendant in error contends that, under the statute, the jury was not required to pass upon the question of title, or wrongful taking of the property. But it must be conceded that those matters were averred in the complaint and denied by the plea. They were most material facts to be determined by the jury. And however the case might have been varied had the defendant in error not alleged in the complaint that he owned the property, but merely that he was entitled to the possession of it, &c., which facts had been controverted by the adverse party and put in issue by the pleadings, still, as title to the property was alleged to be in him, and this as well as all other facts denied, how could the question of title be ignored by the jury? The parties had made up the issues which the jury were called upon to try and determine, and these issues should have been passed upon in the verdict. As they have not been, there must be a new trial.
I will add also, that it is my own opinion, that in an action of replevin in the justice’s court, where the pleadings were framed in conformity to the provisions of chapter 88, the title to the property is generally put in issue. It is true that section 139 provides what the affidavit for the writ shall contain, and does not require that the party should swear that he owned the property. A party, to maintain replevin, must, at the time of caption, have either the general property in the goods taken or a special property therein. 1 Chitty’s Plead., p. 163; Gillett vs. Treganza, 6 Wis., 343. The general property might be in one person while the right to the immediate possession was in another. The form of the affidavit given is adapted to a case where the plaintiff was then lawfully entitled to the possession. But if, in addition to being entitled to the possession, he was the owner of the
Therefore, as the verdict was defective in substance in this .case, the judgment of the circuit court is reversed, and a new •trial awarded.