Westcott v. Bock

| Colo. | Feb 15, 1874

Beleobd, J.

Bock instituted a suit in replevin against Westcott, on the 20th of November, 3871, in the probate court of Arapahoe county, to recover a certain wagon, alleged to be wrongfully in the possession of Westcott. The case being called, and Bock not appearing, a judgment of dismissal was entered for want of prosecution, a writ of retorno Tiabendo awarded, and $50 allowed the defendant for the detention of the property. Bock then brought his action in replevin against Westcott in the district court, for the property which had been taken in the first suit. The defendant relied on the adjudication had in the probate court, claiming it to be final between the parties.

At common law when the merits of a suit in replevin were decided by a verdict for the defendant, or judgment for him on demurrer, or confession by the plaintiff, the judgment for the defendant awarded him a return of the distress irreplevisable. A different rule obtained in the case of a non-suit, for, in that case, the defendant was not entitled to this judgment.

To remedy the inconvenience which proceeded' from the plaintiff in the case of nonsuits, having several replevins for one and the same cause, the statute of Edw. I, ch. 2, was framed, in which it was provided 'that after judgment on verdict, or demurrer, or upon a non pros, for want of a declaration or plea in bar, or nonsuit at the trial, the judgment for the defendant should be held irreplevisable, and that the plaintiff could have no new writ of replevin, but must sue out of the court where the nonsuit was had, a new writ called the second deliverance, and which operated as a supersedeas in law to the sheriff to execute the writ of retorno habendo, obtained on the nonsuit of the plaintiff.

If upon the writ of second deliverance the party replevying made default, the statute provided that the distress should remain irreplevisable forever. Wheaton’s Selwyn, vol. 2, 1226.

This statute of Edw. I is only applicable to actions of replevin founded on a distress for rent, and is not of general nature, but is local to that kingdom, and inconsistent with the laws, practice and policy of this country. Dagget v. Robbins, 2 Blackf. 415" court="Ind." date_filed="1831-11-07" href="https://app.midpage.ai/document/daggett-v-robins-7029720?utm_source=webapp" opinion_id="7029720">2 Blackf. 415.

It seems clear, therefore, that the judgment of nonsuit, and the delivery of the property to the defendant, under the order of retorno habendo made in pursuance of such nonsuit, does not make the property irreplevisable. There is no trial on the merits, and the party is not concluded.

We decline to consider the errors assigned to the instructions of the court, because the plaintiff in error has not complied with rule number 12, which requires that “ where the error alleged is to the charge of the court, the part of the charge referred to shall be quoted totidem verbis, in the specifications.” The instructions given cover two or three pages of the record. The whole charge is set forth in one specification. A charge is made up of a series of propositions, interdependent, in one sense, yet distinct in another. Some may be correct, others wrong. Where a party assigns error to an entire charge, we think that each proposition announced by the court should be regarded as a separate instruction, and should be specifically assigned.

We cannot alford the time to search through a long charge to find a fault concealed under the glittering generality of quod in omnibus est erratum. It is the duty of counsel to specially direct the attention of the court to the distinct matter of which they complain. And it is only those matters complained of that it is necessary to set out.

It is well settled that if a series of propositions be embodied in instructions, and the instructions excepted to in a mass, if any one of the propositions be correct, the exception must be overruled. Johnson v. Jones et al., 1 Black, 220.

We think the evidence in the case supports the verdict.

The judgment is accordingly

Affirmed.