35 Vt. 315 | Vt. | 1862
We have found no occasion to determine the questions that have- been made and discussed by counselfor in our judgment the case has been brought here under an entire misapprehension of the true character of this species of replevin. There is in fact no such case or 'suit between these parties, as can furnish a legal foundation for a judgment for, or against, either. Replevin by the debtor of his goods when attached by a creditor, is in no sense an adversary suit; the party at whose instance the replevin is made, claims no right against the creditor who made the attachment, and complains of no wrong done by him. This is made perfectly apparent by the form of the Writ given by the statute in such cases. There is no plaintiff and no defendant. The creditor is not called upon to answer to any claim or complaint of the debtor, nor is the validity or propriety of the attachment disputed, or the interference or judgment of the court asked for in any way. Replevin of this character is wholly a creation of the statute, but that does not contemplate or provide for any judgment, as in the other classes of replevin which are adversary suits.
It is clear, too, from the language of the statute, that a writ of replevin of goods attached, brought by the debtor, is not to be entered in court upon the docket like ordinary cases, but the writ and bond taken are to be returned to the clerk of the court where the original suit is returnable, and he is to keep the same on file. The condition of the bond is not, to prosecute the suit to judgment and return the property if the court shall render judgment for a return, as in the other cases of replevin, but to return the property to be taken in execution, or pay the credit tor’s judgment*
This writ of replevin is only a mode provided by the statute, by which the debtor can compel a restoration of his property which has been attached, by his giving security to the creditors ;• a compulsory mode of receipting property attached.
We regard such a writ of replevin, not as an independent original action or suit, but as a part of, or appendage to, the original action ; and that if any application is made to the court growing out of such replevin, and the court take any action thereon, such application must be made, and such action had, as
It is quite obvious, that unless the court had power in such eases to interfere by some order, where bonds are defective, or insufficient, or become so in the course of the proceedings, very great injustice might ensue ; but we have no occasion now,to decide as to the existence or extent of their authority in such cases.
The attention of the court below seems not to have been asked, or given, to the nature of this proceeding, as the judgment was. merely pro forma, but as no judgment could legally be rendered, either to dismiss the action, or for a return of the property, that judgment is reversed; and as there is no case .to remand, and nothing to be tried if remanded, the exceptions are dismissed.