5 Wis. 389 | Wis. | 1856
By the Court,
Although our replevin act (chap. 119, B. S.), does not expressly provide that no action of replevin shall be prosecuted unless a bond is given by the plaintiff in pursuance of section 8; yet we are satisfied by tbe strongest implication, that such is tbe intention of tbe act. In- the form of the writ prescribed by section 7, the officer is commanded, 'if the plaintiff gives security as required by law, to prosecute his complaint and return the goods and chattels, if return thereof shall be adjudged, and to pay all sums of money recovered against him— to cause tbe goods and chattels to be replevied, and delivered to said plaintiff, and then to summon, &c. By section 8, after tbe sheriff has taken tbe property, tbe plaintiff is required to give a bond as therein specified ; when this has been done, tbe officer, Upon receipt of tbe. bond, is authorized to deliver possession of tbe property to tbe plaintiff, or to bis authorized agent. Section 9. Tbe obvious intent and object of these provisions are to insure to tbe person who contests tbe plaintiff’s claim, and out of
The writ in this cause was issued on the 23d of February and made returnable on .the third Monday in April, 1855. On the 29th of March, the sheriff returned the writ, with his return indorsed thereon, to the effect that he had executed the
On tbe 12tb of April, tbe defendant Baker moved to quash tbe writ and dismiss tbe suit and all proceedings therein, for tbe reason that no bond bad been given. After bearing tbe motion, and before tbe decision thereof, the plaintiff presented in open court, a bond, and asked leave to file it, but tbe court refused to grant leave, and ordered that a judgment of discontinuance be entered in tbe cause against tbe plaintiff; that tbe property be returned to tbe defendants; that they recover their damages, sustained by reason of tbe detention thereof; and that a writ of inquiry issue to assess tbe same.
' It is insisted, that tbe court erred in giving judgment of discontinuance, generally, upon tbe motion, since tbe defendants Heatb and Hunt bad pleaded to tbe action. ■ We are.of tbe opinion, however, that tbe court decided properly. We have already stated, that it was an essential pre-requisite to the prosecution of tbe. action, that tbe plaintiff prepare bis bond within a reasonable time after the officer bad seized and taken into bis possession, tbe property. We are now considering a case, where tbe property mentioned in tbe writ has been replevied by tbe officer. Sections 12 and 28, make provision for tbe trial of tbe cause, where the property has not been replevied and delivered to the plaintiff. That is not this case. ■ Here, tbe property was replev-ied, and tbe plaintiff, neglected to give tbe requisite bond until a motion bad been filed and argued, to discontinue upon that ground. . Two of tbe defendants bad pleaded, thus indicating a willingness, perhaps, to waive, as far as they were concerned, tbe irregularity of tbe plaintiff in not filing bis bond. But they could not, by pleading, conclude their co-defendant of bis right to take advantage of it. Tbe objection taken, went to the-writ and- very foundation of the-’ action. - That being tbe case, it' is difficult to comprehend bow tbe writ could be quashed and- tbe suit
' The counsel for the plaintiff in error has taken exceptions to the ruling of the Circuit Court, upon the execution of the writ of inquiry in open court, 'as to the'measure of damages. We are of the opinion that the rule laid down by the Circuit Court was quite as favorable for the plaintiff in error ás the facts of the case would warrant, and that he has no just ground of complaint. He insists that the defendants were not entitled to any damages, but only costs, because,- although the property had been replevied, it had -not been .delivered to the. plaintiff, and relies upon section 39, to sustain this position. That provision does not apply to.this case, since the property was replevied from the possession of the defendants, and removed from the hotel. The defendants were deprived' of the use of it for some weeks. And.it was perfectly right and proper that they should be paid for this use by receiving interest upon its value while it was thus out of their possession, as well -as damages for the depreciation .of the property, or injury done it by the plaintiff, and the necessary expense of placing the furniture, in its former position, fitted for use. • .
The- counsel for the defendants in error has questioned the
The judgment of the Circuit' Court is affirmed.