Ormsbee v. Davis

Storrs, J. The defendant claims, that the facts alleged in the first plea, and the rejoinder in connexion with it, constitute a bar to this action, because they show, that the property re — 574 — plevied by Saunders, was, when attached on behalf of the plaintiff, and ever since has been, holden by the officer who attached the same, to respond on the executions of Pond & Co., on whose behalf it was first attached. The objection to the plantiff’s recovery is urged, on the ground that the plaintiff has no interest in the property, or that there has not been a breach of the condition of the replevin bond, because the time had not arrived when the property could legally be demanded on the plaintiff’s execution, and therefore, that there has been no default in not returning said property. The case of Jordan & al. v. Gallup, decided by us at the present term, (ante, p. 536.) is however decisive, to shew, that the property was exonerated from the lien created by the attachments of Pond & Co., in consequence of its not having been taken and applied on their executions, within the time and in the manner prescribed by law; and that, therefore, it was holden to respond on the judgment of the plaintiff. On this ground that action was sustained against the officer, for his neglect in not having the property attached so that it might be taken on the plaintiff’s execution. Therefore, the first plea is insufficient. As to the third plea; if, as the defendant insists, the statute requiring the plaintiff to give bond for prosecution as a security to the defendant for costs, was applicable to the action of replevin brought by Saunders, it is obvious, that the provision was made solely for the benefit of the defendant in that suit; and the omission to give such bond being merely an irregularity in the process, which at most made it voidable only, and not void, was a matter pleadable only in abatement. By not interposing such plea, but pleading to the merits of the action, the defendant waived the irregularity, which he clearly had a right to do. Quisque renuntiare potest juri pro se introducto. Com. Dig. tit. Abatement. C. I. 23. 24. It requires neither authority nor argument to shew, that the proceedings in the replevin suit, are not invalidated on that account. The third plea, therefore, is insufficient. The next question respects the competency of the defendant to plead the facts stated in the fourth plea, and their sufficiency as a bar to this suit. The declaration alleges, that, after the attachment of the property on the plaintiff’s writ, Saunders brought his action of replevin therefor, on which it — 575 — was delivered to Saunders; that he withdrew said action of replevin, and wholly failed to prosecute his said suit to effect; and that the court before which it was brought, rendered judgment that the plaintiff should recover his costs; and that Saunders, having wholly failed to make out a title to said goods and chattels, it was considered and adjudged by said court, that he should return said goods and chattels to the officer who had attached the same, and that, on failure thereof, he should pay the value of the goods, &c.—This plea, impliedly admitting the truth of these allegations, states, that the property, when so attached on behalf of the plaintiff, and also when replevied, was the property of said Saunders. The plaintiff, in his replication, sets up, that the defendant is estopped in this suit from alleging said facts stated in said plea, by reason of the facts alleged in that part of the declaration which has been recited. The rejoinder of the defendant repels this claim of estoppel, by the facts therein stated, to which there is a special demurrer. It is unnecessary to notice the facts stated in the rejoinder, or the special causes of demurrer, since our decision does not turn upon them. The questions which arise upon these pleadings, are 1. whether it is competent for the defendant to set up the facts stated in the plea; and if it is, 2. whether they constitute a legal excuse for not returning the property attached at the suit of the plaintiff to the officer attaching the same, so that it might be taken on the plaintiff’s execution; in other words, for not complying with the judgment of the court in the action of replevin. If the ownership by Saunders of the property would in law form such an excuse, it would seem, that it was neither so directly put in issue and explicitly negatived in the replevin suit, nor so necessarily inconsistent with the facts there found, that according to the rules which prevail on the subject of estoppels by matter of record, the defendant would be precluded from availing himself of the existence of this fact, in the manner attempted by this plea. The record in that suit states, that the court found that the plaintiff therein failed to make out a title to said property. Such finding is not equivalent to an allegation that such title was in issue and tried in that suit, because it might be, that such failure was owing to other causes which may be supposed; and it in fact appears in this case, that it was in consequence of the plain — 576 — tiff in that action withdrawing his suit, which was of itself a failure to prosecute his suit to effect or to make out a title, and indeed precluded a trial of the title. And this finding was justified and sustained, by such withdrawal. We waive, however, a decision of the point whether this plea is bad on the ground of estoppel, since we are clearly of the opinion, that Saunders’s ownership of the property constitutes no legal excuse for not returning it, in compliance with the order of the court. The statute regulating actions of replevin for goods and chattels attached, brought by a person other than the defendant in the suit, who shall claim to be the owner of them, (which is the character of the replevin suit in question,) provides, that “if the plaintiff in such suit shall fail to make out a title to such goods and chattels, judgment shall be rendered against him to return such goods and chattels to the officer who attached the same; and that, on failure thereof, he shall pay the value of such goods and chattels, or the debt or damages recovered in the action in which they were attached, in case they exceed in value the amount of the debt or damage and costs.” Stat. tit. Replevin, §8. That the court to which the replevin suit was brought, adjudged that the plaintiff therein had failed to make out a title to the property, and should return the same to the officer by whom it was attached, is averred in the declaration in the present case, and admitted by the plea which we are considering. That judgment, being rendered by a court having full and undoubted jurisdiction over the subject, is, on the most familiar principles, conclusive on the parties to that suit, and all who stand in the relation of privies to them; and as it stands in full force until regularly reversed, it cannot be impeached collaterally by them. Nor can the propriety or reasons of the result to which such court arrived in rendering its judgment, be collaterally examined. It is sufficient, that its proceedings are within the sphere of its jurisdiction. Especially has a judgment like this that effect, which acts specifically on the properly replevied, and which therefore is in the nature of a judgment in rem. It would be indeed a strange anomaly, if in this case a party to a suit could justify himself in not complying with the judgment rendered in it against him, by shewing, that such judgment is erroneous, in consequence of the exist — 577 — ence of a state of facts, which it was incumbent on him to establish in that suit, which it was the object of that suit to try, and which he had an opportunity then to prove, but which he wholly failed to make out. The defendant in this suit confounds the rules of pleading in the action of replevin, with those applicable to a suit on the replevin bond. In that action, it was the all-important enquiry, whether the plaintiff had a title to the property; and there was the proper place to try that question. The question here is, not whether in fact he had such title, but whether he made it out on the trial of that suit. The record in that suit conclusively shews, that he did not; and that judgment of return was thereupon rendered. If it were proper to examine the propriety of that judgment, it appears to be manifestly correct. The withdrawal of the suit was plainly a failure to make out his title; and the statute thereupon expressly required the court to render a judgment of return. With this judgment it was the duty of the plaintiff in that action to comply, notwithstanding he may have been in fact the owner of the property replevied, and by returning it to the officer who had attached it, place the defendant in the same situation in which he stood when the writ of replevin was issued. In that peculiar action, both parties are said to be actors, because the property is specifically claimed by both, and the object of it is to dispose specifically of it to the party entitled. Hence, each party is treated as both plaintiff and defendant. It would be contrary to the very genius of the action to permit the plaintiff, after he has failed to prosecute his suit with success, and the defendant has obtained a judgment of return, to retain possession of the property. While it might be the height of injustice to the defendant, it would sanction the principle that a party might set at defiance and disregard the judgment of the court with impunity, and use its process as a cover for a tortious dispossession of another of his property. The defendant, however, claims, that the declaration in this case is insufficient, because it does not allege, that there was an avowry in the action of replevin, by the present plaintiff, who was the defendant in that suit; and therefore, it does not appear, that the court could regularly award a judgment of return. The declaration is according to the long established and most approved precedents in actions on replevin bonds; — 578 — by a reference to which it will be seen, that in such cases there is no averment of an avowry in the replevin suit. The pleadings in that suit are not detailed nor described in the declaration on a replevin bond; but the proceedings are stated with a taliter processum fuit, in the most succinct manner. 2 Chitt. Pl. 460, 1. 1 Saund. 92. n. 2. 1 Wils. 317. Cowp. 18. It has, moreover, been often and uniformly decided, that in this action, an averment of an avowry is unnecessary. Gould v. Warner, 3 Wend. 58. Saund. Plead. & Ev. 769. 770. 2 Chitt. Pl. 460. The defendant also objects, that it does not appear by the declaration, that any issue was formed or tried in the replevin suit, upon which a judgment of return could be based. That there was no trial of any issue between the parties, is evident from the averment that the suit was withdrawn by the plaintiff in that suit. But in the action of replevin, that clearly would not prevent the defendant from having a return of the property, if on the facts he was entitled to it. Whether on the withdrawal, any suggestion or formal claim by the defendant, was requsite, in order to lay the foundation of a judgment of return, need not here be decided. If it was, the presumption is, that it was properly made; for there is always a legal presumption in favour of the regularity of the proceedings of every court while acting within its jurisdiction. The People v. Nevins, 1 Hill 154. Hart v. Seixas, 21 Wend. 40. Barwis v. Keppel, 1 Wils. 314. 317. The defendant, in the last place, insists, that it should appear by the declaration, that a writ of retorno habendo was issued; for that there is no default in not returning the property, until it has been properly demanded on such writ. Whether such writ was necessary to be taken out and returned on the judgment, in the replevin suit, in order to subject the defendant to this action, need not be here considered. We are not aware, that such has been the practice in this state. In England and New-York, it has been adjudged to be necessary. It is however there well settled, and we think correctly, that in an action against the sureties on the replevin bond, it is not necessary that the issuing or returning of such writ should be alleged in the declaration, but that it is sufficient if it be proved on the trial. 2 Chitt. Pl. 463. 10 — 579 — Wend. 329. Sellon's Prac. 267. Willes 6. The declaration, in this respect, is therefore sufficient. The last plea alleges, that the plaintiff in the action of replevin has paid to the present plaintiff the costs of that suit. This plea has not been insisted on, and is clearly no answer to this action. The superior court, therefore, should be advised, that the first, third, fourth, and fifth pleas are insufficient. In this opinion the other Judges concurred. Judgment for plaintiff.