The opinion of the court was delivered by
An execution was issued against the plaintiff in error, a discharged bankrupt, and was levied upon his goods. He thereupon brought an action of replevin for the property against the sheriff, and obtained the possession of the goods so levied on. The sheriff, defendant in error, filed an answer admitting the property to have belonged to plaintiff on the 10th of January, 1870, but that on that day he as sheriff of Bourbon county by virtue of the execution, which he sets out in full, levied on the goods, and by virtue of said levy he held the goods and was entitled to the possession thereof. To this answer plaintiff filed his reply, not denying the allegations of the answer, but alleging, 1st, That he was legally released from the claim and judgment on which the execution aforesaid was issued, by ca discharge in bankruptcy, under the laws of the United States, issued by the District Court for the District of Kansas, which discharge is set out in full. 2d, That on the 22d'of January, 1870, the judgment on which said execution was issued was by the district court of Leavenworth county discharged. To this reply said defendant demurred, and the court sustained the demurrer to the second ground of reply and overruled it as to the first, and plaintiff excepted. On the trial the court refused to permit the plaintiff to introduce any testimony. Defendant then introduced testimony tending to show the value of the goods, and the jury were instructed to find for the defendant, to find also the value of the goods, and the defendant’s interest in them at the time they were taken from him, which was the amount he was required to levy under the execution set up in the answer. To the refusal to receive the testimony offered by him plaintiff excepted; and to the testimony offered by defend
It will be observed from this summary of the record that the plaintiff does not deny any part of the answer, so that all that is new matter must be taken as true. The plaintiff by his reply sets up a discharge in bankruptcy as showing that the judgment had been discharged thereby, and also that after this suit was commenced a discharge of the judgment had been entered upon the records of Leavenworth county. But the existence of the judgment, the issue of the execution thereon, and the levy and seizure of the property thereunder, are not denied, and are to be considered as admitted facts. This state of the pleadings raises a question the decision of which will go far to dispose of all the errors alleged.
At common law if cmy person should take out a replevin for property taken in execution issuing from a superior court, the court would commit him for a contempt of their jurisdiction 1 Chitty Pl., 164. The code has so modified this that any person other than the judgment-debtor, or person against whom the process is issued, may have this remedy, because the issues made in any such proceeding by a stranger raise no question as to the validity or regularity of the judgment or process; and several of the states have adopted statutes similar to ours. The' wisdom of our code on this subject, as we construe it, is vindicated by the following observations, showing the utter confusion that would result from the code if the construction should be given to it claimed by the plaintiff in error: “If a defendant in the execution, after judgment had been legally entered against him upon a full and fair trial, were tolerated in bringing his action of replevin, and by it to replevy the goods taken in execution, there might be no end to the delays which the defendant might thus create. Justice and the end of the law would be effectually subdued, for although the defendant in the execution and plaintiff in the action of replevin would fail upon the trial, and judgment would be rendered in favor of the officer for the restoration of the property, yet the action might be again and again renewed, and.delay without end effected. To prevent
A further reason against the construction claimed is, that the redress afforded by the action of replevin is not complete. The plaintiff in error is not complaining of this; but still it may be mentioned as a reason for not giving the section a construction its language will not readily bear. If replevin would lie, and the plaintiff was successful, still another execution might issue, and endless litigation ensue, unless the defendant in the execution should have the matter corrected by appropriate proceedings in the court from which the execution issued.
Neither was there error in excluding the testimony when offered to lessen the amount of the verdict; for the plaintiff in error, if aggrieved, had a most ample remedy. Let him return the property to the custody of the law, whence he had unlawfully taken it, and correct the error by appropriate proceedings in the proper tribunal. This conclusion disposes of the whole case; for even if it was error to sustain the demurrer to one count of the reply, and overrule it as to the other, when the demurrer was to both, still it was error against the defendant in error, for both counts of the reply were bad.
[* As a question Praotioe, the language of the text will scarcely he construed as requiring the plaintiff in replevin on the trial of the action to prove the negative averments required hy the 4th clause of § 177 of the code, (and § 56 of the Justice’s Act,) to he inserted in the affidavit, whether such averments are repeated in the petition or not. In Carney v. Doyle, 14 Wis., 270, the Supreme Court of Wisconsin, in an action which originated in a justice’s court decided that “it is not necessary for the plaintiff to prove ” “ that the property he seeks to recover had not heen taken for any tax or hy any execution or attachment against him.” These matters “must exist as facts;” hut a mere denial'by the defendant does not put'them in issue so as to “throw upon the plaintiff the burden of proving a negative, or of disproving any justification for the taking of his property.” “The object of the statute in requiring these averments,” says the Wisconsin court, “ was to prevent parties who knew their property had heen thus taken from replevying it.” But whenever a defendant seeks to justify the taking, he is required to allege and prove affirmatively such facts as constitute legal protection; and he may, if he can, allege and prove that the property was taken under legal process against the property of the plaintiff. Such proof duly made defeats replevin brought hy such plaintiff, (except where the property is hy Jaw exempt,) because in such case the matters stated in the averments are shown not to “ exist as facts,” and the action cannot he maintained. See also. Hudler v. Golden, 36 N. Y., 446; O'Reilly v. Good., 42 Barb., 521. —Reporter.]