23 Mich. 242 | Mich. | 1871
A clear understanding of the point raised by this record requires a somewhat extended statement of the material
In April, 1870, Clark, one of the plaintiffs in error, commenced a suit in replevin, against West, for a heifer, before John H. Dresser, a justice of the peace, and the animal was taken upon the writ, and delivered to Clark, and on the 21st of May, thereafter, judgment was given by the justice in favor of West, the then defendant, and return of the property ordered. On the 23d of the same month, Clark gave notice to the justice of his intention of removing the cause, by certiorari, to the circuit court, and on the next day and within four days after the judgment, the justice issued his precept for the return of the property to West, pursuant to the judgment, and it was executed on the same day. On the next day, and within five days after the rendition of the judgment, and one day after the property was returned to West under the precept therefor, the certiorari for removing the cause to the circuit court, pursuant to the notice before given, was served by Clark upon the justice. And on the succeeding day Clark caused a writing to be served on West, by Brown, the other plaintiff in error, in which he notified West of the removal of ■the cause, and also demanded possession of the heifer. It appears from West’s evidence, that on being served with this paper, he informed Brown that the. heifer was in his stable, and that Brown then took her from thence and put her into Clark’s possession. This taking appears to have been peaceable and without objection on the part of West, although, according to the evidence of the latter, it was without his consent. The possession of the animal was thus peaceably restored to Clark, as plaintiff in the then pending replevin suit, after the proceedings for the removal of the cause were perfected. After these events and on the same day of this' reprisal, and while the possession so
In the November following, the second case upon appeal from the judgment of Justice Robertson came on to be tried in the circuit court before a jury, when West, the plaintiff therein, gave in evidence the proceedings in the first case before Justice Dresser, including the judgment for return, upon which he relied, the notice to the justice of Clark’s intention to remove the cause, the precept for the return of the property, the return of the officer showing its execution and the writing served by Brown. He further gave in evidence the circumstances attending the service of this writing, the taking of the heifer by Brown, her delivery by Brown to Clark, and her value, and that Brown acted by direction of Clark. Having shown these facts, West rested his case. •
Clark was then sworn as a witness for himself and his co-defendant, and his counsel asked him this question: “Whose heifer is that?” which was excluded, upon the ground that the judgment of Justice Dresser, in the first suit, was conclusive evidence of title in West. The counsel for Clark and Brown then offered to show that the heifer originally belonged to Clark; that she was taken in his absence from his possession, and without his knowledge or consent, by West; that he, Clark, thereupon commenced the first suit in replevin; that Justice Dresser rendered judgment against
The rejection of the offer of evidence as to Clark’s possession at the commencement of the second, suit, and of evidence relating to proceedings in, and about, the first suit, including the reversal of the first judgment against Clark, was erroneous. In Belden v. Laing, 8 Mich., 500, which was also a case of cross-replevin, it was declared “that the object of our statutory replevin is to determine the right of possession at the commencement of the action, as well as title to the property for temporary or permanent purposes connected with that possession. Any thing going to show that the plaintiff in replevin had no right to the possession when he commenced his suit, is a complete bar to the action. And proof that a sheriff had taken property on a lawful writ from the plaintiff, and continued lawfully to hold it under that writ when replevin was brought, would go to negative the plaintiff’s right of possession, and of course defeat his suit.” To this view we adhere. If the facts offered to be proved by Clark had been satisfactorily shown, the evidence would have brought the defense within the principle here stated. It is true that the judgment in the first replevin had passed against Clark in the primary court, where a return had been awarded. It is also true that after Clark had taken the first step to remove the cause, and before the certiorari had been issued, a precept for the return of the property to West had been issued and executed. But after the proceedings for removing the cause were perfected and complete, the possession was peaceably regained by Clark and held by him as plaintiff in the first suit. He was, therefore, in the actual possession as plaintiff in the suit then pending; a possession which he had avowedly taken as such plaintiff,
By force of the first writ of replevin, and the proceedings had under it, Clark became entitled, as against West, to the possession during the pendency of that' suit, subject only to such possible interruption, by the service of a precept for return, as actually occurred. As this court has said, the primary object of our action of replevin “is to enable the plaintiff to obtain the actual possession of property wrongfully detained from him by the defendant, at the time the action is brought.”— Hickey v. Hinsdale, 12 Mich., 99. But it is claimed that the judgment of Justice Dresser awarding return to West, and the execution of that judgment before service of the certiorari, so worked upon the right of possession as to cut off any further right to it in Clark, during the pendency of that suit. If this position is correct, then, in the majority of cases in replevin, where the defendant succeeds before the justice, what this court has stated to be the “primary object” of the suit may be defeated by rapid proceedings for return of the property by the defendant and the justice. But without here questioning the regularity of the precept for return and its execution after notice of the plaintiff’s intention to remove the cause, and before the expiration of five days after judgment, it cannot be doubted that Clark had the right, as against West during the pendency of the first suit, to retain the possession which he had peaceably acquired, after completing the remaining steps required by law for the removal of the cause. The completion of the proceedings for such removal suspended the further operation of the judgment of the justice, and left the writ, by which the suit was commenced, in legal force; and Clark was at liberty thereafter to regain possession by his own act, if he could do so peaceably and without personal
In Whipple v. Farrar, 3 Mich., 436, it was held that a sheriff’s deed should relate back to the levy for certain purposes. In Landes v. Brant, 10 How., 348, which was ejectment, the land in controversy was in the territory acquired by the Louisiana purchase, and was the subject of a claim, in 1805, by one Clamorgan before the commissioners for the determination of such claims, and which claim was by them confirmed in 1811. Clamorgan died in 1814. In 1845 the government issued a patent to his heirs under the act of 1836. While the claim was pending before the commissioners and before they confirmed it, his right was sold on execution, according to the laws of Missouri then in force. Brant claimed title under this sale. Clamorgan, dying after the sheriff’s sale and also after confirma
In Jackson ex dem. De Forest & McMichael v. Ramsay, 3 Cow., 75, which was ejectment, the plaintiff claimed as devisee in the will of A. M. McMichael, dated April 17, 1818. The testator died seized, shortly after the will was made. The defendant derived title through execution sales made after the testator’s death, to satisfy judgments recovered against him in his lifetime. But the sheriff’s deeds were made many years after the testator’s death and after
Clark having given notice to the justice, as required by law, of his intention to remove the cause, before process issued to restore possession to West, and having thereupon completed the proceedings for such removal, and' then, as, plaintiff in the case thus pending, having by his own act,, openly and peaceably,'after demand, and without any deceptive or clandestine practice, regained posséssion before the present suit was commenced, the steps for the removal of the cause, taken after the notice given to the justice, as likewise the judgment of reversal, related back to-the time of such notice, for the purpose of protecting Clark’s possession, against the claim of West based on the judgment of Justice Dresser, and no plea puis darrein was • needed-
If the evidence relating to the first suit, which plaintiff in error offered, had been allowed, it would have shown that when West commenced the second suit Clark was entitled to the possession as against him, and consequently it would have afforded , a perfect defense to Clark and Brown on that trial. The judgment for return in the first case, upon which West appears to have wholly relied as a ground of recovery by himself and as precluding any defense by Clark and Brown founded upon Clark’s original property right,- had been reversed upon certiorari; and this reversal, so far as necessary to protect Clark as plaintiff in the first suit, in