Kern v. Davis

Bailey, J. The petition for a certiorari, in so far as it attempts to show that the judgment of the justice of the peace was unjust and erroneous, answers, in our opinion, the requirements of the statute. If it be true that the plaintiffs agreed to allow the goods in question to remain temporarily in the hands of Prindeville, they manifestly had no right while that agreement was in force to charge the defendants with the conversion of said goods, or to take judgment therefor against them in trover. The only question is, whether it sufficiently appears from the petition that said judgment was not the result of. negligence on the part of the petitioner, and that it was not in his power to take an appeal in the ordinary way. In determining'these questions the statements of tlie petition must be taken as true, and if on its face, it is sufficient to exculpate the petitioner from the imputation of negligence, the writ of certio7'a,ri should not have been quashed. The petition shows that after the writ of replevin was issued, the constable charged with its execution, together with Davis, one of the plaintiffs, came to Prindeville, the deputy sheriff who had custody of the goods, for the purpose of serving said writ, and that it was then and there agreed between Davis, acting, as it must be presumed, on behalf of his firm, and Jussen, who was acting in the matter as the attorney of the sheriff and his deputy, and also of the execution creditors, that the goods should not then be replevied, but should for the time being be allowed to remain in the custody of Prindeville. This was tantamount to an agreement on the part of plaintiffs to abandon the suit. After agreeing that the property should remain in the possession of one of the defendants, they could no longer maintain replevin, nor even serve the replevin writ. Their cause of action, so far as that particular suit was concerned, was abandoned, and they must be presumed, by the same act, to have abandoned the suit itself. Its further prosecution was a direct violation of the agreement, as well as a gross fraud. It being assumed, then, as it must be for the purposes of this appeal, that the agreement above recited was entered into by the plaintiffs, the defendants had a right to rely upon it and to presume that it would be carried out by the plaintiffs in good faith. In so far as the defendants based their subsequent conduct upon such presumption, it does not lie in the mouths of the plaintiffs to charge them with negligence. They were warranted in assuming that the replevin suit would be abandoned, and the plaintiffs are in no position to impute to them negligence for failing to appear and defend, or for failing to ascertain either the facts or the fruits of the fraud perpetrated by the plaintiffs in prosecuting their suit to judgment, within the time limited by the statute for talcing an appeal. It also appears from the petition that in their subsequent conduct the plaintiffs adroitly managed to disarm suspicion on the part of the defendants, and to keep them in ignorance of the proceedings being taken, until it should be too late to perfect an appeal. Having succeeded in their scheme, there is no just rule by which a failure of the defendants to appeal in the ordinary way, thus procured, should be attributed to the negligence of the defendants themselves. In our own opinion,.the petition in this caséis sufficient, and the order quashing the writ of certiorari erroneous. The judgment will therefore be reversed and the cause remanded. Judgment reversed.