106 Mich. 240 | Mich. | 1895
This is an action of replevin. The defendants held a judgment against the plaintiff, amounting to about $35, and caused an execution to be issued, and placed in the hands of one Charles A. Merrell, a deputy sheriff, which execution was by him levied upon the property herein involved. A writ of replevin was sued out and directed against these defendants jointly. There is a finding that the property was seized by the direction of these defendants. There is no finding that the property was in the custody of defendants, or under their control. The evidence is distinctly the other way,— that when the chattels were seized they were by the sheriff placed in a barn controlled by a stranger, with instructions to deliver them up only on an order from him, or on legal process. The sole question presented is whether the action is properly planted, or whether i.t should have been brought against the officer.
Replevin is a possessory action, and does not lie against one not in possession of the goods at the time demand is made or the suit is begun. See Wells, Repl.
The judgment will be reversed, and a judgment entered here for defendants, but, as they are not entitled to the custody of the goods, no return of the property will be ordered; and, as this defense was not interposed before a justice, we think the costs for the trial in the court below should be limited to the defendants’ actual disbursements. With this limitation, defendants will recover costs of both courts.