Young v. Lego

38 Wis. 206 | Wis. | 1875

LYON, J.

I. It appeared on. the trial of the action, that the property in controversy was taken by the defendant outside the corporate limits of the city of Chippewa Falls. It is claimed on behalf of the defendant, that the action is local, and that the police justice had no jurisdiction of the subject matter thereof, because his jurisdiction territorially is confined to such limits. If the action is local, Connors v. Gorey, 32 Wis., 518, is an authority which sustains the position. That was an action commenced in a municipal court of the city of Fond du Lac for an unlawful and forcible entry and detainer. The premises were situated outside the territorial limits of the city. The action being local in its character, we held, on constitutional grounds, that the municipal court had no jurisdiction thereof. Strangely enough the learned counsel for the defendant seem to have overlooked that case entirely, and they have referred us to but one authority to sustain the proposition that this is a local action. That authority is Hilliard on Remedies for Torts, § 14, where it is said, “ replevin is local, and must be brought in the county where the goods are taken or distrained.” To this doctrine the author cites Robinson v. Mead, 7 Mass., 353. Looking into that case, we find that the court held the action (which was replevin) to be local in its nature; but no opinion was delivered, and the grounds of the decision are not stated. In the argument of one of the counsel, however,- a statute is quoted, which provides that where goods and chattels which have been taken, distrained or attached, are claimed by a third person, if he think proper to replevy the same, i:he may take out and prosecute his writ of replevin from the clerk’s office of the court of common pleas, in the county where the goods and chattels are thus taken, distrained or attached.’' Now far the decision was influenced by this statute, does not appear.

But we need not determine the common-law character of the action of replevin, for we think its character is determined by statute. A brief history of legislation on the subject in this state may not be entirely superfluous. In the revised statutes of 1839 we find the following: “ § 3. Whenever an action of replevin shall be brought for the recovery of goods or chattels distrained for any cause, it shall be laid in the county in which the distress was made, and not elsewhere ; in other cases the action shall be laid and tried in like manner as actions of trespass for injuries to personal property.” (p. 271.) Inasmuch as the latter are transitory actions, the effect of this statute was to make all actions of replevin transitory, except those brought for goods which had been distrained.

The statute of 1839 was repealed in the revision of 1849, and the following took its place. “ Whenever an action of replevin shall be brought for the recovery of goods or .chattels, it shall be laid and tried in like manner as actions of trespass for injuries to personal property.” E. S. 1849, ch. 119, sec. 3. Of course, while this statute remained in force, all actions of re-plevin were transitory.

Next came the code and certain amendments thereto, still in force, in which are enumerated certain classes of actions that “ must be tried in the county in which the subject of the action or some part thereof is situated,” and certain other classes which must be tried in the county where the cause of action or some part thereof arose. Among the former are actions “for the recovery of personal property distrained for any cause.” All actions not thus enumerated may be tried in the county where the defendant may be at the time he is served with a summons. No action to recover personal property is thus enumerated, save those brought for property which has been distrained. The enumerated actions are local; all others are transitory. R. S. 1858, ch. 128.

Inasmuch as the property sought to be recovered in this action was not distrained, the action is not local, but transitory. It follows that the police court had jurisdiction of the cause.

II. The judgment is irregular in two particulars: 1. It provides for a return to the plaintiff of the kit of carpenter’s tools, while the verdict fails to find that he is entitled thereto. 2. The defendant is entitled to judgment for the blankets. R. S., ch. 120, sec. 151. It may be said that, inasmuch as the property was not replevied, but remains in the hands of the defendant, a judgment for the return of the blankets is superfluous. But the statute seems to be imperative that he shall have judgment. At any rate the defendant is entitled to recover costs. R. S., ch. 120, sec. 159. For these reasons the judgment must be reversed. But if no other material error has intervened, and if the verdict is sufficient to warrant a proper judgment, a new trial should not be granted, but the cause should be remanded with directions that the proper judgment be entered. Everit v. The Walworth County Bank, 18 Wis., 419.

III. This brings us to the question of the sufficiency of the verdict. Under the decisions of this court in Everit v. The Walworth County Bank, supra; Krause v. Cutting, 82 Wis., 687; and Eldred v. The Oconto Company, 33 id., 133, it can be sustained as a general verdict for the plaintiff for all the property found to belong to him, and doubtless would be sufficient to sustain a judgment for the recovery of such property, had it determined the rights of the parties as to all of the property claimed. But it fails to determine those rights as to all of the property, and hence, fails to determine all of the issues. The issue as to whether the plaintiff or the defendant is entitled to the kit of carpenter’s tools, is left undetermined. This court has repeatedly held that a verdict which leaves any of the issues undetermined, is fatally defective. Child v. Child, 13 Wis., 17, and cases cited; Appleton v. Barrett, 22 id., 568. Because of this defect, no valid judgment can be entered on the verdict, and there must be a new trial.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.