Harrow v. Ryan

33eok, J. — The intervenors, Thomas G. Eyan & Co., claim, in this action, to recover the value of the property, [158] because tbey were tbe owners and entitled to, and had the possession of, the goods when they were replevied. By their intervention and under their claim, they stand in the position of defendants in the action. After tbe property was taken from tbem upon tbe writ issued in tbis case tbey again acquired its possession by a subsequent action. It is tbe case of defendants in a replevin suit claiming to recover the value of the property replevied when it is established that, after tbe property was taken from tbem upon tbe writ, tbey recovered its possession by another action. Tbis cannot be allowed. A defendant in an action of replevin recovers tbe value of tbe property, after bis right to tbe possession and ownership is established, for tbe reason that, by tbe proceeding, be is deprived of bis property. Tbe deprivation of bis property is tbe ground upon which be recovers its value. If this deprivation be but temporary, and the property is returned to his possession before his rights thereto are determined in tbe action, tbis fact may be shown to defeat bis claim for its value. In such a case, while be may be entitled to recover for tbe detention of tbe property and damages resulting therefrom, he will not be allowed its value. DeWitt v. Morris & Platt, 13 Wend. 496. The rule is, in' all cases, the same, without regarding the means, whether by his own act or tbe act of plaintiff in tbe suit, by which tbe property is restored to bis possession. In any case it would be contrary to reason to award the defendant damages to the extent of tbe value of the goods, when at the time he held them in possession as his own property. After Thomas Gr. Ryan & Co. obtained possession of tbe property it was taken from them upon a writ of replevin, so that, in fact, wben tbe decision in tbis case was rendered, tbey did not bold its possession. Tbis fact does not defeat tbe application of tbe rule first stated to tbis case. Notwithstanding any disposition which may have been made of tbe property by Ryan & Co., or by tbe law, [159] if it was not restored to the plaintiff it must be regarded as in their possession and their rights determined accordingly. This indisputably would be the case if they had voluntarily disposed of it, and it must be so regarded if it was taken from them by process of law. Their rights in the replevin action in which the goods were taken from them, which are secured by the bond given therein, must stand in the place of the property. They must look to that action for the restoration of the property or its value. They cannot be heard in this action to say: “ It is true that, after the property was taken from us by plaintiff, we acquired from him its possession, but since that time we have lost it by an action of replevin instituted by another party.” The subsequent suits, and the relation which the parties bear to each other in this action, do not change the application of the rule. It cannot be said that the last action restored the property to the possession of Samuel Harrow. In that action J. D. Harrow acquired its possession. If he purchased it, without knowledge of Ryan & Co.’s claim, after the replevin from them, upon a bona fide sale, he acquired a valid title. Gimble v. Ackley, 12 Iowa, 27. His rights to the property cannot be determined in this suit for he is not a party herein. The claim of Ira B. Ryan for judgment for the value of the property is defeated by the fact that the property was not owned ,by him. It is true that he is a member of the firm that did own it. His rights will be protected in the disposition of the actions whenever the firm is a party. He cannot be permitted to separate himself from the firm in this litigation. Besides this, the possession of Ryan & Co., acquired after the replevin in this case, operates, in contemplation of law, so for as his rights are concerned, as his possession. The effect of this possession upon his claim for the value of the goods is the same as upon their own claim, as above shown. The multiplicity of suits resorted to by the parties cannot [160] be justified, but must be condemned in strong terms. Tbeir respective rights could have been all settled in the first suit. But of this Ryan & Co. are in no condition to take advantage. Being the first to commence an unnecessary litigation they are the more culpable of the parties. The judgment of the district court is. Affirmed.