Stoeckel v. Russell

The Court, Houston, J., charged the jury that, as the only question presented in the case was a question of law for the *35 decision of the Court, and depended solely on the record evidence produced in the trial of it, he would merely say to them that it was the opinion of the Court that Robert R. Russell, one of the two defendants in this action, and the only defendant in the suit of George Stoeckel, the plaintiff, against him before John L. Thompson, a justice of the peace in this county, in the year 1877, in which he recovered a j udgment for debt and costs against Russell, on which an execution was issued, and levied upon certain goods and chattels of Russell, and among them upon the horse in question in this action, and under which execution the said goods and chattels, including the said horse, were afterwards advertised and sold at constable’s sale, and purchased by Stoeckel, the plaintiff in the month of November in that year, and were thereupon delivered by the constable to Stoeckel, the plaintiff and purchaser of them; and, in the month of February following, the record in that suit was certified and removed on a writ of certiorari into this court, and on errors assigned the judgment in it was afterwards reversed by this court. After that, the horse in question was taken from the possession of Stoeckel without his knowledge and consent, and was found in the possession of Russell and his co-defendant in this action, Charles A. Isaacs, and was demanded of them by Stoeckel, but which they refused to deliver to him, and thereupon this action of replevin was commenced by him against them in this court for the recovery of it. Under the facts and circumstances thus detailed in the case, as it was personal property of Russell, the defendant, in the judgment before the justice of the peace, and was purchased, by Stoeckel, the plaintiff in it, at the constable’s sale on the execution issued upon it, the subsequent reversal of that judgment on the writ of certiorari in this court, in law annulled it, and the execution and sale under it, and restored the legal right of Russell to the horse, and entitled him to a restitution of it as against Stoeckel, the purchaser of it, and the plaintiff in the judgment and execution under which it was sold, and which were afterwards reversed and annulled in this court, as I have before stated. The plaintiff is, therefore, not entitled to recover in this action, and your verdict should be for the defendant, with *36 six cents costs besides their costs expended in it, as the horse was not replevied on the writ, but remained in their possession on their giving the required bond and security to the sheriff for the forthcoming of it on the determination of the action.