6 S.D. 396 | S.D. | 1894
In the fall of 1891 the McCormick Harvesting Machine Company instituted an action in claim and delivery against Andrew Feury, and the sheriff was required by an order endorsed upon the affidavit, signed by the plaintiff’s attorney, to take into his possession certain wheat therein described, and which it appears from the record was the identical
As to the proceedings of the officer relative to his taking possession of the wheat in the action of claim and delivery, there was much conflict in the evidence. The plaintiff introduced in evidence the return of the officer in the claim and delivery action, made at the time of the alleged levy upon the wheat in controversy. That portion of the return material for .the purposes of this action is as follows: “That under and by virtue-of said undertaking, affidavit and notice, I did on the 30 th day of November, A. D. 1891, in said county and state, take into my possession certain personal property in 'said affidavit described, to-wit: wheat enough to bring two hundred and fifty
The only other question that merits attention is the error assigned: That the court erred in denying defendant’s motion to direct a verdict for defendant. At the close of the evidence the defendant moved the court to direct a verdict for the defendant, on the ground that the plaintiff had failed to prove
The action in claim and delivery is instituted expressly to recover possession of specific personal property. The property is described in an affidavit, usually the important paper in the action. By the indorsement upon the affidavit, required to be made by plaintiff, but in practice usually made by the attorney, the officer is required to take the specific property from the possession of the defendant in the action and deliver it to the plaintiff therein. The officer is vested with no discretion, but is required to take the specifically described property. In the case at bar, the wheat in controversy was fully described in the affidavit, and the defendant’s attorney, acting for and in behalf