Kennedy v. Beck

The opinion of the court was delivered by Valentine, J.: [560] !• Rrecipcsufficiency. [559] This was an action of replevin brought by Kennedy against Samuel Beck and six others. The only rulings of the court below of which the plaintiff now complains are such as were made in favor of the defendant Beck, and against the plaintiff. The facts of the case necessary to be known, in order to have a correct understanding of said rulings, are as follows: On January 27th 1874 the plaintiff filed in the office of the clerk of the district court of Smith county his petition, affidavit, undertaking, precipe, and some [560] other papers, for the purpose of commencing this action of replevin. No question is now raised with regard to the sufficiency of any of the papers, except the precipe; and we may as well consider the question of its sufficiency here as in any other place. The defendant claims that there was “ no written precipe for summons on file.” The body of the precipe filed reads as follows: “The clerk of the district court will please issue process in the above entitled action, returnable according to law.” We suppose the only objection to this precipe is, that it says “process” and does not say “summons.” We think the precipe was sufficient, both for the summons, and for the order of delivery. 2.Replevin. delivery. order vacating erymay belv‘ revieved. [562] 3. order irregularly issued; waiver. Effect of answer to tue merits. [560] The order of delivery was issued on the same day said papers were filed, and was duly served and returned within two days thereafter. The summons was not issued however until February 16th, next following. It was served on all the defendants, and returned within nine days after it was issued. Afterward, all the defendants answered. Beck answered on March 16th. He set forth in his answer that he was the owner of the property, and claimed a return thereof, and damages. On May 5th, “The said defendant Beck moves the court to set aside said order for the delivery of said prpperty to the plaintiff, and declare all proceedings thereunder null and void, and to award to said defendant the right to the possession of said property.” On May 7th, the court below sustained this motion, and the plaintiff excepted; and this is the ruling of which the plaintiff now complains. On May 9th, the case was continued by the court below until the next term of that court. Whether the case has yet been disposed of in the district court, we have no knowledge. The defendant claims that this court cannot review said rulings of the district court until the case is finally disposed of in that court. We think however the defendant is mistaken. The statute provides that, “ The supreme court may also reverse, vacate, or modify any of the following orders of the district [561] court, or a judge thereof — -first, a final order; second, an order that grants or refuses a continuance, discharges, vacates or modifies a provisional remedy,” etc. (Civil Code, § 542.) Now the action of replevin in this state is both provisional and final. The disposition of the property in controversy, pending the litigation, is provisional. The disposition'of the property by judgment at the termination of the action, is final. We suppose there can be no question about this. The order for the delivery of the property issued at the commencement of the action, together with the necessary incidental proceedings, is purely a provisional remedy. And hence, under our code, an order of the district court that vacates and sets aside said order of delivery, and the incidental proceedings connected therewith,, is immediately reviewable by this court; and it is not necessary in such a case for the aggrieved party to wait till the final termination of the action in the district court, before bringing the question to this court. Besides, the action of replevin is peculiar. The provisional portion thereof is so intimately connected with the ultimate remedy of the litigating parties, that the whole proceeding is generally classed among the provisional remedies. And this being so, it would almost seem that, under another provision of the statute, an order of the district court involving the merits of the provisional portion of the action might be immediately reviewable by the supreme court, as an order that involves the merits of an action, or some part thereof,” without waiting for the final termination of the action. (Code, § 542, last clause.) We do not decide this question however, now. But did the district court err in setting aside the order of replevin, with the proceedings connected therewith, and in giving the custody of the property to Beck? Now, if the plaintiff was not entitled to the custody of the property, perhaps he has no right to complain that the-court erred in giving the property to Beck, instead of giving it to some one or more of the other defendants, or to a stranger; and hence we pass oyer this question without further consideration thereof. We shall consider Beck however, for this purpose, as representing [562] the interests of each and all of the other defendants; and then, did the court below err? We think it did. It was undoubtedly a great irregularity in issuing the order of replevin before issuing the summons; and if the defendant had made his motion in time, his motion should undoubt- , . . edly have been sustained. But still, it was not the fault of the plaintiff that the irregularity occurred. It was merely the mistake of the clerk; and we do not think it ■was one of those fatal irregularities that cannot be cured or waived by subsequent proceedings. If the defendant had moved to set aside the order of replevin, and all the proceedings thereunder before he answered, the motion should have been sustained. In that case, the defendant would have got the possession of the property for the time being, and if the plaintiff had then desired to get possession of the property, or to prosecute his action further, he could have got another order of replevin. But the defendant did not make his motion before he answered. He answered first, and made his motion afterward, and thereby put it beyond the power of the plaintiff to obtain another order of replevin. A plaintiff is entitled under the statute to obtain an order of replevin only “at the commencement of the suit, or at any time before answer.” (Code, § 176.) Now, can it be possible that by the mistake of the clerk, and the defendant’s answering before he made his motion, that the plaintiff can be virtually and substantially deprived of his action of replevin? We think not. We think the defendant waived the irregularity of issuing the order of replevin before the summonSj when he answered to the merits of the action. In the interest of justice this ought to be so. When a supposed action is commenced, the defendant, unless he desires to answer to the merits at once, -should examine all the proceedings carefully, and see whether he cannot defeat the action for irregularities or defects in the proceedings, and upon motion. If he should think he could not defeat the action in that way, then he should see whether he could not defeat it by plea in abatement, or by demurrer. But if he563 thinks be cannot defeat it in any of these ways, then he should finally and lastly plead to the merits of the action. And when he does so plead, it should generally be regarded that he waives all mere irregularities preceding his plea. Of course, this is not so where the statute provides otherwise. Of course, it is not so where justice would be as well or better subserved by a different rule. And of course, it need not necessarily be so where any of the provisional remedies, other than replevin, are resorted to in connection with the principal or main remedy; for any of the other provisional remedies may be had at any time, before or after answer filed, and some of them even after judgment. And hence, to dissolve or vacate any of the other provisional remedies, after answer filed, can do the plaintiff but very little harm, for he can immediately commence again to get another such remedy. Besides, no other provisional remedy is so intimately connected with the main action as the provisional portion of replevin. The provisional remedy in replevin is in fact a part of the main remedy. And to defeat it, may substantially defeat the whole action. The judgment of the .court below is reversed, and cause remanded for further proceedings in accordance with this opinion. All the Justices concurring.