Sexton v. McDowd

Graves, J. The plaintiff in error being sheriff of Wayne county received for service a writ of replevin out of the Superior Court of Detroit in favor of one Samuel Norclheimer and against one Sarah J. Hanlon for a piano. Mrs. Hanlon was staying in Detroit with, her daughter Mrs. MeDowd, the latter being absent from home. The piano was there and plaintiff in error took it on the writ. At that time it was not in Mrs. Hanlon’s possession. The fact was so found, as appears by the record. Mrs. MeDowd claiming to be owner brought this action of trover against him, and on the trial he contended that the writ of replevin in the ease of Nordheimer against Mrs. Hanlon afforded him complete protection against Mrs. McDowd’s charge of conversion founded on his acts in executing that writ. The court decided, that the writ was not a protection, and this is assigned as error. At the hearing Hallett v. Byrt, as reported in Carthew, Shipman v. Clark, 4 Denio, 447, Foster v. Pettibone, 20 Barb., 357, and King v. Orser, 4 Duer, 436, were cited as authority for the position of the plaintiff in error, while Stimpson v. Reynolds, 14 Barb., 506, Clark v. Parkinson, 10 Allen, 133, and Billings v. Thomas, 114 Mass., 570, were cited among other cases to support the ruling. Assuming the report in Carthew to be correct, it cannot afford any aid. The ancient action of replevin was a very different remedy from that marked out by our statute, and the distinctions go far enough to hinder the case in question from applying. The cases from Denio and Barbour are contradictory, and settle nothing, and it is plain that the rule is not there regarded as determined. In Rogers v. Weir, 34 N. Y., 463, the subject was referred to in the court of appeals, and the question was treated as still open. The ease in Duer did not profess to decide the point. • [150] On the other hand, the Massachusetts cases cited to support the ruling were not intended to be so understood. This is distinctly shown by White v. Dolliver, 113 Mass., 400. The court there express this dictum: “While the property was in the hands of the sheriff, and he was actually engaged in transferring it to the possession of the defendant, it was in custodia legis, and the officer could not have been disturbed while making the transfer. Hallett v. Byrt, Carth. 380; Sanborn v. Leavitt, 43 N. H., 473; Willard v. Kimball, 10 Allen, 211.” Before allowing decisions made elsewhere to have special influence in the case, wTe should be able to find a correspondence between the action of replevin there and here in respect to those features fitted to affect the judgments of the courts on the question, and we are of opinion that the general scheme and leading properties of the action as defined by statute in New York and Massachusetts permit, if they do not require, a view upon the point before us which is not admissible under our statute. Certainly the decisions in their courts produce that impression. With us replevin is founded on an unlawful detention whether an unlawful taking has occurred or not, Hickey v. Hinsdale, 12 Mich., 99, and it proceeds upon the idea that the property is actually withheld by the defendant and is to be taken by the officer under his process from him, and in order to facilitate its actual subjection to the action the law requires that the process shall describe it. Still it is settled that this description need not be so explicit and exclusive as to supersede recourse to extrinsic help. If with such aid as the plaintiff usually affords, the officer can identify the property, it is sufficient. Farwell v. Fox, 18 Mich., 166. Indeed, it may be laid down that in the great majority of cases the designation in the writ must be supplemented by other means of identification, and the officer must use Ms intelligence in ascertaining assisting facts and in apply [151] ihg the description to the property intended, and here-as well as in serving attachments and executions, where the direction is not to take specific chattels, but only leviable goods belonging to the defendant, there is room for error if not opportunity for abuse. In the case of replevin the wrong goods and of a third person may be taken, and in the other case goods of the leviable sort but belonging to a stranger to the proceeding. Again, in replevin the goods supposed to be indicated may be found in the actual possession and apparent ownership of a stranger to the writ who claims them, and the officer may nevertheless assume to seize them without having required indemnifying security, although the plaintiff, at least without giving such security if demanded, could not insist upon the execution of the writ against them as goods detained by the defendant. Now there must be difficulty in finding any practical ground for admitting that the writ shall protect the officer in the last case against the stranger’s action for conversion without admitting what all agree in denying, that it shall equally protect in the others. The plaintiff in error admits there can be no protection in the cases first suggested, but still contends for it in the other. As already intimated, in cases at least where th¿ officer has no indemnifying security, there is no law in this State to entitle the plaintiff to insist that in executing the writ, property shall be taken which is in the actual possession and apparent ownership of a stranger to the process, and who claims the right to hold it, and if the officer is asked by the plaintiff to make the seizure under such circumstances he may prudently insist upon indemnity before proceeding. And whether the possession is actually in the defendant or a stranger will seldom be as difficult for the officer to decide as the question of identity of the goods in controversy, — or in the case of serving an attachment or execution, the fact of ownership by the defendant, — and accordingly no such diversity of duties, discretion or risks by the officer is [152] perceived as would seem to authorize the distraction urged. The statute takes pains to guard the defendant’s rights by a bond, but makes no provision to protect third persons against seizures of their property in the execution of the writ. On the contrary, it contemplates speedy delivery to the plaintiff of the property taken, and neither requires it to be held in legal custody during the litigation nor provides for any intervention and claim in the action by a third party. The form and nature of the remedy suppose a case where the defendant unlawfully detains the property from the plaintiff, and not a case where the defendant cannot surrender nor the plaintiff accept possession, and it requires that before the writ shall be executed an affidavit shall be attached showing, among other things, that the plaintiff is entitled to the possession of the property, and that the defendant, not a stranger, unlawfully detains it. The entire scheme of the action suggests that the seizure is to be made from the actual or constructive possession of the defendant, and hence that the attention of the officer must be distinctly applied to that condition. In case the property is claimed, held and apparently owned by a third person, and hence is not detained by the defendant from the plaintiff, or so situated as to be subject to surrender, by the defendant, the process does not require the officer to seize it. If, however, he proceed to take it, though it be the very property described, his writ will not protect him if such third person is the bona fide owner and .holder. The plaintiff in error following Stephenson v. Little, 10 Mich., 433, adduced evidence tending to show that at the time of the alleged conversion, namely, when he executed the writ of replevin in the suit brought by Nordheimer against Mrs. Hanlon, the property was owned by Nordheimer and held by a right which contradicted the claim of right made in this case by Mrs. McDowd. And. in [153] order to rebut this defense and show that Nordheimer did not so own and hold, the defendant m error gave in evidence the special verdict returned in the replevin case. No objection was offered to its introduction, but the judge was asked to charge that it was not entitled to any weight in the case, and that the jury should disregard it. This was not only refused, but the jury were told that Nordheimer’s right was adversely decided by the verdict and that they need not consequently consider certain evidence which had been adduced to make out the contrary. This ruling was improper and misleading. So far as the special verdict may be supposed to have related to the merits, it is very blind and uncertain and quite too obscure and imperfect to be interpreted to the jury in this case as a finding that Nordheimer had no title. 3 Graham & Waterman on New Trials, 1418 et seq. It is clear and explicit in finding that Mrs. Hanlon was not in possession when the article was demanded of her, or when the replevin suit Avas brought, and this was probably deemed sufficient to end the case, whatever was the fact as to other matters, and hence that it was not considered important to secure an intelligible finding on the merits. Some other topics were noticed in connection with the use made of the proceedings in replevin, but they need no attention now. On account of the ruling last noticed the judgment must be reversed with costs and a new trial granted. Campbell, C. J., and Cooley, J., concurred. Marston, J., did not sit in this case.