44 Kan. 159 | Kan. | 1890
Opinion by
This was an action of replevin, commenced by the defendant in error, J. W. Griffis, sheriff of Chase county, against J. C. Lyeth, who was the agent of the Atchison, Topeka & Santa Fé Railroad Company at Strong City.
The plaintiff below held an attachment issued by a justice of the peace at Strong City, directed to him as sheriff of Chase county, in a suit commenced by George Smith against William McMurphy, upon a claim for $16.47. The writ of attachment was issued on the 12th day of November, 1885, and on the morning of the same day a deputy sheriff went with the writ to the depot of the Atchison, Topeka & Santa Fé rail
This suit was instituted the next day, and the goods, in the meantime, had been shipped away from Strong City. In the attachment suit, the defendant, William McMurphy, was not served with summons, as he was not found in the county. Service by publication was made, and judgment rendered against him in justice’s court. After the introduction of all the evidence in the trial of this case, in the court below, certain instructions were asked by the defendant below, which were refused by the trial court. The court instructed the jury to return a verdict for the plaintiff. The plaintiff in error brings the case here for review.
The claim made by the plaintiff in error is, that the sheriff was not entitled to the immediate possession of the goods; that there was no legal levy of the attachment; that there was no wrongful detention by the defendant below; and that therefore replevin did not lie. It is provided by § 32 of the
Again, it was held by the same court that to make a legal and valid levy upon personal property, the officer must do such acts as that, but for the protection of the writ, he would be liable. A levy under which the officer does not have actual control of the personal property levied upon, with power of removal, is invalid. (Rix v. Silknitter, 57 Iowa, 262.) It could hardly be claimed that the officer would have been liable as a trespasser, upon the facts as developed in this case, if suit had been commenced by the owner of the goods, as his possession had not been interfered with in the least.
In executing a levy upon personal property of a tangible sort, the officer must take possession, and the possession, to render the attachment effectual, must be actual, in the sense that it takes the property from the immediate control of the defendant and gives the officer control over it. (1 Am. and Eng. Enc. of Law, p. 919; Wade on Attachment, §129.) The
Inasmuch as the officer did not have the actual control of the property in controversy, the levy was invalid, and he did not obtain such an interest as entitled him to bring a suit in replevin. It follows, from this view of the law, that the court was in error in instructing the jury to return a verdict for the plaintiff below. We therefore recommend that the judgment be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered.