73 N.W. 65 | N.D. | 1897
The plaintiff is pursuing a wrong remedy to vindicate her rights. She is seeking in an action of replevin to recover the possession of certain wheat seized by the defendant,as the sheriff of Walsh County, in this state under a requisitiop
The question has thus far been discussed on the theory that no change in the common-law rule has been effected in this state by legislation, and it now becomes necessary to ascertain whether any provision of the code has modified this doctrine of the common law. Section 5341, Rev. Codes, provides: “If the property taken is claimed by any other person than the defendant or his agent, and such person shall make affidavit of his title thereto and right to the possession thereof, stating the grounds of such right and title, and serve the same upon the sheriff, the sheriff shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff on demand of him or his agent shall indemnify the sheriff against such claim by an undertaking executed by two sureties accompanied by their affidavits, that
But it is obvious that § 5341, Rev. Codes, has wrought some change in the law touching the sheriff’s liability on seizure of property under requisition in replevin actions, even when the property is taken from the possession of the defendant in such
It appears in this case that the defendant, as sheriff, took the property from the possession of the plaintiff in this action, and not from the possession of the defendant in the first replevin suit. Under such circumstances, it is the rule that the officer cannot justify his seizure under the writ. It commands him to take the property described from the possession of the defendant in the action only. By wresting it from another who has control over it, he becomes a trespasser if it is in fact the property of such third person. Otis v. Williams, 70 N. Y. 208; Bullis v. Montgomery, 50 N. Y. 352. This, however, does not show that replevin will lie against him. In the replevin suit in which he took the property, the defendant in such action may set up his possession at the time of suit, and recover judgment against the plaintiff therein. The Court may find, either on an admission of the fact or in a contest with respect to the question of possession, that the defendant was in fact in possession. The sheriff must proceed on the theory that this contingency is possible, and in fact it is usually probable.
This same argument applies to the claim that the sheriff in this case, in seizing the property in the first replevin action, took not only the wheat specified in the requisition, but also some that was not therein described. This presents a question of identity. Doubtless, the sheriff is liable in conversion for the wheat taken without right. But the property is in fact in custody of the law. If it is the very wheat described in the requisition, the sheriff is charged with a duty with respect to it; and that duty is, so far as the possession of the property is concerned, a duty owing to the parties to the first replevin action, and not to the plaintiff herein or any one else. The finding in this case that it is not the identical property in no manner settles that issue as against either of the parties to the first action. They still have a right to claim and show that it is the very property described in the requisition, and such may be the fact. If it is the identical property, the sheriff is bound to keep and deliver it according to the statute. He must therefore be allowed to retain possession of it in order to respond to the parties to the first action, on the theory that it is the property to which the replevin action relates. To interfere with his possession is to prevent his delivery of the property to
We do not wish to be understood as holding that, after a reasonable time has expired in which to obtain indemnity from the plaintiff in a replevin action, the sheriff is not liable merely because he retains possession of the property. To protect himself from liability thereafter, he must surrender the property to the defendant in the replevin suit. In other words, it is not our purpose to hold that replevin will not lie against the sheriff after it has become his duty to deliver the property to one of the parties to the first replevin suit, and he fails after a reasonable time to make such delivery. Thereafter he cannot claim the protection of the law, for he does not need it. It is his own wrong that renders him liable in such a case. He may then be sued in conversion or in replevin. So long as he is acting as sheriff, charged with a duty with respect to the property, the law will not permit his possession to be interfered with. But when, after a reasonable time in which to perform his duty, and thus shield himself from liability in a replevin action, has passed, he is still found in possession of the property, he is not acting as sheriff, and the property is not in custody of the law, It is in the same position with respect to a second replevin action that property replevied is after it has been delivered to one of the parties to the action. In such a case the better rule is that a second replevin suit will lie against the party in possession; and the sheriff cannot defeat the right of the claimant to maintain replevin by withholding such possession, but, on the contrary, he himself becomes liable to be sued in replevin if he does not, in a reasonable time after his duty to do so arises, deliver the res to the party to the first action entitled thereto. The judgment is reversed, and a new trial is ordered.