Hass v. Prescott

| Wis. | Aug 15, 1875

Lyon, J.

I. It is claimed on behalf of the defendant, that because the affidavit for the warrant of replevin (which by statute is the complaint in the action) fails to allege that the plaintiff is the owner, either general or special, of the property in controversy, it fails to state a cause of action, and hence that the objection to the admission of any testimony under the complaint, made at the commencement of the trial, should have been sustained.

Notwithstanding what was said by Mr. Justice Cole in the opinion in Child v. Child, 13 Wis., 17" court="Wis." date_filed="1860-11-19" href="https://app.midpage.ai/document/child-v-child-6598292?utm_source=webapp" opinion_id="6598292">13 Wis., 17, we all think that if the affidavit for the warrant contains the allegations required by the statute, it is sufficient; and although it may be necessary for the plaintiff to prove that he has an interest in the property in order to establish his right to the possession thereof, yet he need not state in the affidavit the nature of such interest. To hold otherwise would be to interpolate in the statute requirements not made or contemplated by the legislature; and this we are not at liberty to do.

In this case the affidavit contains all the averments which the statute requires, and it must be held that it states .a cause of action.

II. The instruction prayed on behalf of the defendant was properly refused. Following the very pointed intimations of this court in Saxton v. Williams, 15 Wis., 292" court="Wis." date_filed="1862-05-15" href="https://app.midpage.ai/document/saxton-v-williams-6598694?utm_source=webapp" opinion_id="6598694">15 Wis., 292, and in several other cases, we hold that while plaintiff held the property in pledge, the defendant was not entitled to dispossess him by virtue of the execution against Brown, although undoubtedly he might have levied upon and sold the interest of Brown therein. R. S., ch. 134, sec. 21. This principle was so fully and satisfactorily discussed by Mr. Justice Paine in Saxton v. Williams, that it is quite sufficient to refer to that discussion, without enlarging here upon the subject.

Whether the statute which provides that “ no personal property shall be exposed for sale unless the same be present and within the view of those attending such sale ” (R. S., ch. 134, sec. 32), is applicable to such a case ; and, if. applicable, what right of access to the property in the hands of the pledgee the officer may have for the purpose of selling the interest of the pledgor therein,— are questions not here determined.

It will be observed that we adopt the conclusion of those judges whose opinions did not prevail in Stief v. Hart, 1 Coms., 20, referred to by Mr. Justice Paine in Saxton v. Williams.

III. We think the verdict disposes of all the material issues of fact in the action, and is therefore sufficient. Each party claims only a special interest in th.e property in controversy, and both concede that Brown is the general owner thereof. The verdict is that the plaintiff has a special interest in the property to the amount of $14.37 (which is less than the whole value thereof), and is entitled to the possession of the property, and that the defendant unlawfully took and detains the same. True, the jury failed to find in terms that the defendant will be entitled to the possession after the amount of the plaintiff’s lien is paid ; but that right of the defendant was not.controverted in the action. It is a fair presumption from the record that the property was returned to the defendant pursuant to the order of the justice ; and the judgment leaves it in his possession.

IY. The judgment is not for a return of the property, but is simply a judgment for damages for'the amount of the plaintiff’s special interest therein. The statute (R. S., ch; 120, sec. 152) gives the court discretion in such a case to render judgment for damages only. Hence the judgment is not erroneous merely because it is not for a return of the property.

Y. It is alleged as matter of fact that the verdict and judgment are for twenty-four cents more than the actual amount of the plaintiff’s special interest in the property; and as matter of law, that it should be reversed because of such excess. But if the plaintiff was entitled to recover in the action, a computation shows that the jury assessed his damages at the correct sum. And were the fact as claimed on behalf of the defendant, it would not work a reversal of the judgment. De mini-mis non cured lex.

We find no material error'in the record before us, and must affirm the judgment of the circuit court.

By the Court. —Judgment affirmed.