25 Colo. 184 | Colo. | 1898
delivered the opinion of the court.
On the foregoing record plaintiff assigns numerous errors, but a consideration of the following propositions will be sufficient for a determination of the case:
First. Power of the court to require plaintiff to file a new replevin bond, and enforce obedience to such order in the manner adopted by the trial court.
Second. The regularity of the proceedings, substituting Ware as defendant.
The issuance of a writ of replevin in advance of a judgment settling the rights of the parties in an action for the claim and delivery of personal property is a provisional remedy, which can only be invoked in the manner provided by the code on this subject. Before such writ can be issued, a bond must be filed. Under such writ the party at whose instance it is issued is entitled to the possession of the property, taken under the writ, pending the trial of the cause upon its merits, unless defendant chooses to give what is termed a “re-delivery bond.” The object of the bond required before the writ issues, is for the protection of the defendant in the action. The code also provides that when any undertaking given in an action of replevin is insufficient, a new one may be ordered filed within such time as directed, and upon failure to comply with such order, the court shall direct the return of the property to the adverse party pending trial. A party at whose instance a writ of replevin issues cannot retain possession of the property taken by virtue of such writ during the pendency of the action, unless he keeps his security good; and it therefore becomes imperative upon the court in which such suit is brought, or may be pending, if the bond given is insufficient for any reason, upon
In our former opinion the cause was reversed for the reason that Ware was improperly substituted as a defendant in the 'action. Under the facts as disclosed by the record, whether ■or not such substitution could be made becomes of supreme importance, and counsel for defendant in error also petition for a rehearing on this proposition, and in his brief in support ■of the application, says, in effect, that he understands the ruling of the court to be based upon the fact that the case being one for unlawful seizure of property, the defendants ■originally sued became liable in their individual, and not in their official, capacity, and that when a substitution became necessary, their personal representatives should have been substituted, and the action being one in tort, their official successor had no interest in the litigation, and could not make himself liable for the personal torts of his predecessors. This view he admits is undoubtedly sound, but questions its application to the facts in this case, because the possession of the property did not remain with the original defendants, and that they sought to obtain a return thereof by reason of their seizure of such property under writs of attachment, and therefore, became actors in the controversy, and sought to establish their right to the possession of such property in their official capacity; and their term of office having expired, their successor, by virtue of his office, became entitled to the possession of such goods in the event they were successful, and it was, therefore, proper to substitute him as the defendant in the action. We do not understand that the property being in the possession of the plaintiff instead of the original defendants at the time of the substitution, would make any difference in regard to the question of substitution, ■
Again, the plaintiff claimed damages from the original defendants on account of their alleged wrongful seizure of the property, and that claim, over their objection, they could, not be compelled to establish as against another. Had they given a redelivery bond, and been in possession of the property at the time their terms of office expired, with this litigation still pending, we do not understand that they would have been required to turn over this property to their successor in office. True, after they ceased to be officers, they could make no disposition of the property under any process, from the court, but that in no manner determines their right, to the possession of the property after they ceased to be officers, for in this action they seek to avoid a personal, and not, an official, liability growing out of their seizure of such property. They were originally sued as individuals. This, was determined by the former decision in this case, in Greig v. Clement, 20 Colo. 167. Ware was substituted in his individual capacity; he could not have been substituted in any other, because the action was not against his predecessor,. Kendall, in his official capacity. The object of the action was to establish a personal, and not an official liability against. the original defendants, and any judgment obtained against them could only have been satisfied out of their individual property. The action did not abate by the expiration of their term of office, and could have been brought against them-after they had ceased to be officers, as well as before. Stillman v. Squire, 1 Denio, 327. When Ware succeeded Kendall, he did not thereby become liable in any capacity for the-seizure of these goods by his predecessor. No action could, have been maintained against him for these acts; nor as an individual did he succeed to any interest in the subject-mattter ■ of the controversy, and the fact that Kendall’s term of office • had expired before the cause was tried, did not relieve him-, from his personal liability, nor could he shift that responsibility upon another, even by consent of one willing to assume,
The test to apply, by which to ascertain who are proper parties to substitute in a pending action, when conditions arise necessitating substitution, is, who has succeeded to the interests of the original parties, in whose stead others are to be substituted?
The former opinion in this cause is withdrawn, and petitions for rehearing denied. The judgment of the trial court is reversed, and the cause remanded.
Reversed and remanded.