Watkins v. Page, 2 Wis. 92

Watkins v. Page

2 Wis. 92 | Wis. | 1853

Lead Opinion

By the Court,

"Whiton, C. J.

At the trial of this cause in the Circuit Court, the judge decided that the áction could not be maintained, for the reason that the defendant, Page, had taken the property by virtue of a writ of replevin iff favor of third persons.

It is contended that this decision is wrong, and should be reversed, as the right to maintain the action against the officer is given by our Revised Statutes, (Rev. Stat., chap. 119, sec. 1,. 2.) But we are of *98opinion that the sections of our statute referred to do confer the power to bring the action. Those sections of the statute, taken together, we think give the light to maintain replevin only in cases where other appropriate actions can be brought.

The inquiry then is, 'whether trespass or trover can be maintained against an officer for taking property by virtue of a writ of replevin. The general doctrine, that an officer is protected in his acts, performed in obedience to the command of a valid process, placed in his hands to be executed, is too well settled to be doubted. In this case, the writ of replevin commanded the officer to take the property in dispute and deliver it to the plaintiff upon his giving the bond required by the statute. We see no reason why the officer should be made liable to an action for doing that which his duty required of him. No reason was stated at the argument why this case should constitute an exception to the general rule above referred to, and we are unable to see any. In the case of Shipman vs. Clark et al., 4 Denio's R. 446, Bronson, Ch. J., refers to this doctrine with approbation, and. refers to Hallett vs. Byrt, Carthew, 380, an authority which is not within our reach. But without authority to show that this point has been determined by express adjudication, we should be content to rest our decision upon the general doctrine, that an officer is protected in all his acts performed in obedience to a valid writ. It also appears that the judge instructed the jury that the appraisal of the property as returned by the officer who executed the writ, was testimony to be considered by them in ascertaining the value of the property, although it did not appear that the appraisers had been sworn as required by the statute. *99We think the judge erred in giving this instruction, The statute (Rev. Stat., chap. 119, sec. 8,) provides that the plaintiff in the action, or some one in his behalf, shall execute a bond to the sheriff, or other officer, to whom the writ is directed, with the addition of his name of office, &c, in a .penalty at least double the value of the property specified in the writ, “ which value shall be ascertained by the oath of one or more disinterested witnesses to be sworn and examined by the sheriff.”

‘It was contended by the counsel for the plaintiff in error, that this appraisal of the property is made merely for the purpose of informing the sheriff in what sum to take the bond, and is no part of his return to the writ, and consequently not testimony.

Without deciding whether an appraisal of the property made according to the statute, would be testimony _or not, we are confident that when the return shows on its face that the statute has not been complied with, it cannot be testimony.

The general doctrine undoubtedly is, that the return of an officer to a writ, is not only evidence, but conclusive evidence of the facts it contains, for all the purposes of the suit; but the officer cannot, by stating facts in his return which are not properly included in it, make the return, as to these facts, testimony. In this case, the officer did in fact return the value of ' the property, and if the return had shown that the appraisers were sworn, the question would have been presented, whether the value of the property as fixed by the appraisers was a fact which it was his duty to state in his return to the writ. But however this may be, his return, in order to be evidence in any case, - *100mast show a compliance with, and not a violation of ^ x r

TJje judgment of the Circuit Court is reversed.

Concurrence Opinion

Smith, J.

I concur in the opinion of the court, that the judgment of the court below must he reversed, for the error committed on the trial, by the admission of -the appraisal as evidence, and in the instructions of the court thereon.

But I do not concur in the opinion of the court, that replevin cannot be maintained against the sheriff who holds property by virtue of another writ of replevin, to which the person seeking to replevy from the sheriff, is not made a party. In other words, I hold that the real owner of property, entitled to the possession, may maintain replevin against the officer who has taken the property from such owner’s possession, by virtue of a writ of replevin issued in a cause to which he is not a party. That none but the parties and their privies are affected by the writ, and that the immunity of the officer afforded by his writ does not in such cases extend to the abridgement or preclusion of the rights of persons who are strangers to it.

I had intended to give my views at length, and my reasons for dissenting from my brethren herein, but have been unable to find time and opportunity. The only authorities which counsel have been able to produce in point, to support the doctrine here established, are, Shipman vs. Clark, 4 Denio, 446; and Hallett vs. Birt, Carthew, 380, cited by Chief Justice Bronson in Shipman vs. Clark. Since this case was decided, I have examined the case in Carthew, and I do not •think it reaches to the extent claimed by Chief Justice Bronson.

*101Upon general principles, it is said this doctrine would be sustained, even were there no authority adduced in its support. But while, upon general prinei-pie, an officer is entitled to every reasonable and requisite protection in the execution of legal process, it is equally clear, upon general principle, that no person should be deprived of his property or possessions without due process of law. Due process of law is that process which gives to the party to be affected by it, his day in court. ' But if third parties may institute process between each other, and seize, or cause the officer to seize my property, and take it from my possession, without giving me'a day in court, is not my property taken from me without - due process ? Am I not a stranger to the process by which the officer seizes and claims to hold my property ? I have no day in court. I cannot appear in the action and defend my rights.

It is no answer to say, that my remedy is upon the party who has wrongfully sued out the writ. The sheriff has taken the property from my possession and claims to hold it, and, so far as I am concerned, without any process; and if the plaintiff will give bail, such as the defendant (perhaps á confederate) will accept, he will deliver it over to him, to be disposed of beyond the reach of recaption. I cannot now pursue this subject further, but will merely remark that, while I am willing so to construe the law as to afford all reasonable and necessary protection to officers acting under process, I cannot so far extend that protection as to divest the citizen of his property without process, to which he is either a party or privy.