Douglass v. Garrett, 5 Wis. 85

Douglass v. Garrett

5 Wis. 85 | Wis. | 1856

By the Court,

Smith, J.

This was an action of replevin commenced in the La Crosse Circuit Court, hy the plaintiff in error against the defendants in error, for a quantity of lumber of the value of five hundred dollars.

The declaration was in the cepit, to which the defendant pleaded the general issue. The record, as it is sent up here, is, to say the least, very inartificial. It is stated that on a certain day the defendants had leave to amend their plea. After-wards, it is stated that not having complied with the terms on which leave to amend was granted, their default was entered. Afterwards, it is stated that the payment of costs was a substantial compliance with the order, and the default was set aside. But whether they ever did amend their plea, or if so, what amendment was made does not appear. The only issue, therefore, presented by the record is the usual plea of non cepit. We have carefully examined the record, and all the papers in the case, but have been unable to find any plea but the one above mentioned. By the issue thus made, therefore, and the bill of exceptions, must the rights of the parties be determined.

After the jury was impanneled, and the plaintiff had rested his case, the defendants moved the court to nonsuit the plaintiff for the reason that the proof offered by him did not make out a case which entitled him to recover, which motion was sustained and a judgment of nonsuit entered accordingly.

Afterwards, a jury was called to assess the damages of the defendant by reason of the detention of the property by the plaintiff (the property having been delivered to the plaintiff by the sheriff, by virtue of the writ), and after hearing the evidence, they returned a verdict as follows: “they assess the value of the lumber replevied at $450, and the damages at $153, making a total of $608,’’whereupon judgment was rendered in favor of the defendants, and against the plaintiff, for the amount last aforesaid.

*89Without stopping to inquire here whether the court below did right in granting the motion for a nonsuit, it is quite apparent that the judgment finally rendered in the case is erroneous. The plea of the defendants was the general issue, non cepit, which simply put in issue the wrongful taking of the property. It asserted no title in the defendants, and under it they were entitled to recover only nominal damages. The plea of non cepit does not entitle the defendant to a judgment of return, or for the value of the property in lieu thereof. Mr. Justice Bronson, in delivering the opinion of the whole court in the case of Pearce vs. Van Dyke (6 Hill, 613), says: “ It is well settled that success upon the plea of non cepit does not entitle the defendant to a return of the property, or to the value as a substitute. He must add an avowry, or cognizance, or plead property in himself or a third person.” Pearce vs. Van Dyke, 6 Hill, 613; People vs. Niagara, C. P., 4 Wend. 207; Bemus vs. Beekman, 3 id. 667; Smith vs. Snyder, 15 id. 324; Prosser vs. Woodward, 20 id. 205.

How this case might have appeared had the plea been amended, or if so, had the amended plea been sent up as a part of the record, it is of course impossible to determine. The printed case purports to give an idea of the substance or effect of the plea, but we cannot regard that in contradiction or enlargement of the record. It is clear, therefore, that the judgment for the value of the property, and more especially for the damages for its detention by virtue of the writ of replevin, is erroneous.

As the adjudication of tins point is sufficient to dispose of the case at this time, we might leave it here. But as it will go back for a new trial, it is, perhaps, our duty to express an opinion upon the ruling of the court below in regard to the motion for a nonsuit. And here we are also of the opinion that the court below erred. There was evidence to go to the jury. The articles sold at the time they purported to have been, did not admit of an immediate manual delivery and visible change of possession, and whether or not there was a sale and delivery under all the circumstances, considering the nature and condition of the lumber, the season, the custom of transfer and delivery, at and about the place, were questions which might well have been left *90to the consideration of the jury. Moreover, we are altogether uninformed, either by plea or proof, of the defendants’ alleged title, whether they claimed as judgment or as attaching creditors, or as subsequent or prior purchasers. They averred no title, they offered no proof of title. They may have, in fact, a good case, but they have cliosen to risk it upon the defect of the plaintiff’s title; and beyond this, without any averment of title or interest in themselves, they have sought and obtained not only the value of the property, but damages for its detention far beyond what interest would cover, all of which is entirely without justification by the record.

Judgment reversed, and a venire de novo awarded.