15 Wis. 276 | Wis. | 1862
By the Court,
It is very evident that this judgment cannot be sustained; for if the court below was right in non-suiting the plaintiff upon the ground that the property was still in his own possession, and that the defendants had never taken it, then surely the defendants were not entitled to any judgment for a return or the value. There could be no return of property to them, which had never
But I am of the opinion that the non-suit was improperly granted for the reason that the proof did not show a sufficient taking and possession by the defendants, to enable the plaintiff to maintain replevin.
That the officer made a complete levy upon the property, such as would have enabled him to maintain trespass or re-plevin against any stranger taking it away, and such as would have enabled the plaintiff, if the owner, to maintain trespass or trover against him, there can be no doubt. The officer went to the stacks of grain, levied upon them, and forbade the folks at the house from touching them. He also told the plaintiff he had taken them, and forbade him to touch them. It is true he did not remove the grain ; and this was not necessary. Gwynne on Sheriffs, 211, 212, and cases cited in notes; Beekman vs. Lansing, 3 Wend., 446; Phillips vs. Hall, 8 Wend., 613; Allen vs. Crary, 10 id., 350; Wheeler vs. McFarland, id., 318; Fonda vs. Van Horne, 15 id., 633; Green vs. Burke, 23 id., 490; Connah vs. Hale, id., 462; Haggerty vs. Wilber, 16 Johns., 287; Brewster vs. Vail, 1 Spencer (N. J.), 56; Reynolds vs. Shuler, 5 Cow., 325; Wintringham vs. Lafoy, 7 Cow., 738; Camp vs. Chamberlain, 5 Henio, 202; Barker vs. Binninger, 4 Kern., 277; Welsh vs. Bell, 32 Penn. St., 16; Angell vs. Keith, 24 Vt., 373.
In this case, the property being bulky and incapable of immediate manual seizure by the officer, he did all that he could, without providing the means for an actual removal, to
It is also laid down as a general rule, by many of the foregoing cases and others that might be cited, that replevin and trespass are concurrent remedies. If this is universally true, the plaintiff’s right to maintain this action would be undoubted. But the counsel for the respondent denies this proposition, and relies upon several authorities which, he claims, established exceptions to the rule. The cases of Brockway vs. Burnap, 12 Barb., 347, and Roberts vs. Randel, 3 Sandf., 712, do not question the general rule any further than to hold that where the wrongful taker of property has parted with it, and no longer has it in his possession, replev-in cannot be maintained, although trespass might It is not necessary for the purposes of this case to controvert that position ; for here the defendants had all the possession at the time this suit was begun, that they ever had. They had not parted with or relinquished it, but asserted their right to hold the property, to the officer who served this writ. Consequently, if the original taking was such as would sustain this action, there was no such change of possession as to bring the case within the doctrine of those two authorities. And neither of them denies the general rule, that where there is an unlawful taking sufficient to sustain trespass, re-plevin also will lie, so long as the wrongdoer retains such possession as he got by reason of the unlawful taking. The case of Elwood vs. Smith, 9 How. Pr. R., 528, goes to show that there had never been any such taking by the defendant as would sustain either trespass or replevin, and therefore has no bearing upon the question. The case of Sharp vs. Whittenhall, 3 Hill, 576, simply decides that where there has been an unlawful taking, subsequent to which the wrongdoer acquired a valid right t) hold the property, by virtue of new process, there the ow . er cannot maintain replevin. This is undoubtedly correct and ought not, I think, to be held really to impeach the correctness of the general rule. For when the general proposition is asserted, that replevin will lie
The case of Richardson vs. Reed, 4 Gray, 441, sustains merely the same principle asserted in Brockway vs. Burnap, and Sharp vs. Whittenhall, that is, that replevin cannot be 'sustained against a defendant who has not, when the suit is begun, either the actual or constructive possession of the property. They accordingly held that an attaching creditor who directed the officer to attach the property, could not be made liable in replevin, for the reason that he had no control over or custody of the property whatever. But they expressly say that the officer is the party to replevy from, because he holds the property under his writ. And the case is no authority against the position that replevin may be sustained against him whenever he has such possession as
Indeed, if the doctrine contended for here be correct, it would follow that replevin could never be sustained to recover cumbrous articles, too bulky for actual removal. In nearly all such cases, the writ is levied without any removal of the property; and according to the reasoning now under consideration, the possession of the real owner, whoever he might be, would not be disturbed, and no replevin could be sustained. I do not believe such is the law, but that, on the contrary, whenever an officer has made such a seizure and taken such possession as would enable him to maintain trespass or replevin against a wrongful taker, replevin may be maintained against him by the-real owner, if a stranger to the writ.
The judgment is reversed, with costs, and a new trial ordered.