Graves v. Sittig

By the Court, Cole, J. There can be no doubt but the instructions given to the jury in this case, by the Circuit Court, were erroneous. The court charged the jury, that if they found for the plaintiff, the measure of damages which the plaintiff was entitled to recover- would be interest at seven per cent, upon the value of the goods from the time of taking, together with snch an amount as would recompense the plaintiff for his loss by deterioration of the goods; to which charge the defendant below excepted. In the present case, the goods in question- were replevied from the possession of the plaintiff in error, who, as sheriff of Brown eounty, had seized them upon a writ of attachment issued against Alexander Sittig, the vendor of the defendant in error, and plaintiff below, and remained in the possession of the coroner, on account of the neglect or refusal of the defendant in error to give the bond required by sec, 8, ch. 119, Revised Statutes. At this term, this court decided, in the case of Morris vs. Baker et al., (post), that it was an essential prerequisite to the prosecution of an action of replevin, when the goods are replevied by the officer [223] under the writ, for the plaintiff in the suit, within a reasonable time, to make out and perfect the bond required by the statute, and that his neglect or refusal to do so would operate as a discontinuance of the suit. It does not appear from the bill of exceptions in this case, that any motion was made in the Circuit Court to dismiss the suit on account of the failure of the plaintiff to give the bond, and therefore the ruling of the court upon-that motion, ■ whatever it might have been, is not now properly before us for consideration. But still the property remained in the custody of the coroner, wholly from the neglect of the plaintiff in error to comply with the provisions of the statute. It was his duty to have executed the replevin bond and obtained possession of the property. Having neglected to do so, there is no justice in giving him damages for the detention of the property, or its depreciation while in the hands of the coroner. • The general rule is, when a party has a judgment in his favor for the caption and detention of goods replevied, that he is entitled to damages for such unjust detention ; and interest upon the value of the goods unlawfully taken, ordinarily forms a proper measure of damages. In this case the court made no distinction between damages for the detention before the service of the writ and after service. It was the plaintiff’s own fault, as we have already said, that he did not obtain possession of these goods by the service of the writ of replevin, and he ought not to be permitted to derive advantage from his own neglect, and recover damages for the detention or depreciation down to the time of trial. ‘ We express no opinion upon the other point in the case as to whether the court erred in holding the notice accompanying the plea insufficient to admit under it evidence to show that the sale of the plaintiff below was fraudulent and void. Counsel are undoubtedly familiar with the ruling in the cases of Jones et al. vs. Lake (2 Wis. 210), and McCarty vs. Gage (3 Wis. 404), and the doctrine of those cases, so far as it may have a bearing upon the present case, it is not proposed to disturb. For the reasons already given, the judgment of the Circuit Court is reversed, and a new trial ordered.