Libby v. Murray

Cole, O. J. This action of replevin could only be sustained against an officer who had either the actual or the constructive possession of the property when the suit was commenced. Where the officer seizes and possesses himself of chattels under a writ in such a manner as to enable him to maintain trespass or replevin against a wrongful taker thereof, there replevin may be brought against such officer by the real owner, if a stranger to the writ. This was the rule laid down in Gallagher v. Bishop, 15 Wis., 276, and which was affirmed in this court in the recent case of Williams v. Morgan, 50 Wis., 548. But, within that rule of law, this action must fail; for it is very evident that the defendant never made such a levy upon the hearse under the writ of attachment as would enable him to maintain trespass or replevin against one who wrongfully inter [374] fered or meddled with the property. Indeed, it is quite plain, that the acts of the defendant in respect to the hearse did not amount to a complete and valid levy of the attachment. Certainly he did not attempt to take the property into his possession and custody under the writ, or place it beyond the control and possession of the plaintiff. The possession of the person having charge of the hearse was not disturbed for a moment, though the property was capable of being taken into the actual possession of the officer. There was really not the slightest actual interference with the rights of the owner over the property, or of the one who claimed the right to control it. These facts, it seems to us, are clearly and conclusively established by the evidence. It is apparent that the defendant made no legal service of the writ upon the attachment debtor; he did not even make a return upon it, having become satisfied that his (attempted service of the same was entirely insufficient. It is true, he read the writ to the plaintiff at the store, and told her he attached the hearse; and, according to the plaintiff’s testimony, he went into the back room, where the hearse was, and looked at it. That was all he did under his process towards taking possession of the property or serving the attachment. He did not take the hearse into his custody, or claim that he had or attempt to exercise any dominion or control over it to the exclusion of the owner. Says Mr. Justice Foster, in Bryant v. Osgood, 52 N. H., 182, 185: “At common law, the doings of an officer in respect Hto personal property cannot amount to a valid attachment unless the articles are taken into his actual custody or placed under his exclusive control. The articles must be within the power of the officer. He must continue to retain this power over them by remaining present himself, or by appointing an jagent in his absence; by taking a receiptor for the property, by inventorying and marking them, or by a seasonable removal of them. The officer must take possession of the goods. It is not necessary that they should be removed, but they must in [375] all cases be put out of the control of the debtor.” Nichols v. Patten, 18 Me., 231; Waterhouse v. Smith, 22 Me., 337; Rand v. Sargent, 23 Me., 326; Fernald v. Chase, 37 Me., 289. The property in this case might have been taken possession of by the officer and removed so as to complete the levy. But he did not assume to control it under his writ, but left it in the control of the person who had previously had possession of it. Under these circumstances it is very evident that this action cannot be maintained. It is said that the defendant, by his declarations, was es-topped from denying that he had made a valid levy. But, as the defendant neither took possession nor attempted to exercise any control over the hearse, there is no reason why he should not have the benefit of his defense that he had not possession of the property when the suit was commenced. A mere declaration by an officer that he has attached personal property, without proof that he has taken possession, or exercised any dominion or control over it, does not amount to a conversion. Fernald v. Chase, supra. The same rule may be applied in this case, where the plaintiff had the same possession and enjoyment of the property at the commencement of the suit she had ever had. Her position in regard to it has not been changed by the acts of the defendant. It follows from these views that the judgment of the circuit court must be reversed, and the cause be remanded with directions to dismiss the complaint. By the Oowrt.— So ordered.