Gibson v. Collings

Evans, J. It appears from the record that an action of replevin was brought in the district court of Union County by one Early against both plaintiffs herein, and that such action was pending at the time of the events herein complained of; that a writ of replevin was duly , sued out in said cause, and was placed in the hands of defendant-sheriff for service, and was duly seiwed by him; that the defendant Weaver was a drayman, who had been employed by plaintiff Early in such suit to re *722 ceive the piano from the sheriff and to convey the same from the home of the plaintiffs herein to the town of Crestón; that said Weaver did receive the piano, and did transport the same to the town of Crestón, and did put the same in storage in such town. This replevin suit was prosecuted and judgment ivas entered therein in favor of plaintiff Early, and against the defendants therein, who are the plaintiffs herein. It ivas adjudged in such suit that Early was entitled to the possession of the property thus replevined. It is contended by the appellants here that the action of the sheriff in taking such p'iano ivas a' mere trespass, because the writ of replevin in-his hands was void and-of no effect. The brief is not clear as to the ground upon which the nullity of the writ is predicated. The writ bore date December 15, 1921, and was executed the same day. It is pointed out that the return of such writ ivas due on or before January 23, 1922, and that such writ was not in fact returned on said date, but on a date long subsequent thereto. This appears to be the ground upon ivhich appellants predicate their claim of nullity. No defect is pointed out in the form of the writ or in the circumstances of its issue. It was in no manner challenged at the trial of the replevin suit. Such trial was had after January 23, 1922, and before the writ ivas formally returned to the court. Whatever penalty the sheriff may have subjected himself to by reason of such default in the time of the return, we fail to see how such a default is available to the plaintiffs herein as a basis for their cause- of action. Their cause of action accrued, if at all, on December 15, 1921. The writ was regular on its face and valid at that time, and the sheriff Avas under duty to execute it. The theory that the failure of the sheriff subsequently to file the return of his writ Aidthin the statutory date became effective to AA'holly destroy the validity of the AArrit ah imtio is Avithout merit. The return of the Avrit had in fact been made and filed long prior to the beginning of this suit, and the validity of such return was never assailed or questioned in the suit in Avhich the writ issued. As to the currency alleged to have been concealed in the piano, it is not claimed that either defendant had any knowledge thereof. On the contrary, plaintiff O. B. Gibson, A\rho had joined Avith his eoplaintiff in concealing the currency only a few *723 hours before the writ was served, was present at the taking of the piano, and gave some assistance to the removal thereof, but Avithheld all information concerning the concealed currency. The plaintiffs were allowed immediate ’ opportunity to make search for the currency after they had made known the alleged concealment thereof. It is undisputed that the piano was put in storage, and that it had not been opened nor its covering disturbed at the time the search for the currency was made. No claim is made in the brief of appellants of any ground of liability of the defendants for such alleged currency, except upon the ground of the nullity of the writ of replevin. It follows that this branch of the appellants’ claim falls with their claim for the piano. The order of the trial court directing a verdict and entering judgment against the plaintiffs is accordingly affirmed.— Affirmed. Faville, C. J., and Albert and Morling, JJ., concur.