Marshall v. Bunker

40 Iowa 121 | Iowa | 1874

Day, J.

The judgment appealed from is correct. The action of replevin involves the question as to the right of possession at the times the action was' brought, and the plaintiff, to recover, must show a right of possession in the property at the time the action was commenced.

The plaintiff claimed that he was the owner of the property in controversy, and as such that he was entitled to its posses-1. kepjmwist; dismissal of •action. sion. .The defendants claimed that they were ... „ . entitled to- the possession m virtue of an attachment against S. H. Marshall, whom they allege to be the owner. This was the attitude of the property, and of the respective claims thereto, at the time the replevin action was commenced. As between the plaintiff and the defendants, if plaintiff was not as owner entitled to the possession of the property, the defendants were entitled to the possession. By dismissing his action the plaintiff abandoned all claim to the possession of the property. And, as the possession of the property at the commencement of the action was in' defendants, upon the abandonment of .the adverse claim of plaintiff, defendants became entitled to the possession of the. property, or to a judgment for the value of their interest therein. And, as defendants claimed the property in virtue of an attachment against S. IT. Marshall, the judgment ultimately recovered against S; H. Marshall, provided that does not exceed the value of the property replevied, was the measure of defendant’s interest therein. . ■ -

See Revision, sections 3562 and 3563. The fact that the attachment was dissolved, and that upon the appeal in which 2-- — . supersedeas bond. this order of dissolution was reversed, no super- . . . , .... sedeas bond was filed, however potent it might be in favor of an intermediate purchaser or attaching creditor, cannot avail plaintiff. If he is not entitled to the possession of the property he must return it, or pay the value of .the right of possession which defendants have as against him. And, as between plaintiff and defendants, this-question must be determined by the facts existing when the action of replevin was commenced. See Cassell v. The Western Stage Co.-, 12 Iowa, 47; Alden & Co. v. Carver, 13 Iowa, 253.

AFFIRMED.