Lindner v. Brock

Cooley, J. One Hogan brought replevin to recover from Brock the possession of certain personal property, appraised at something over $3,000. The property was taken on the writ, and delivered to Hogan on his executing and delivering to the officer the statutory replevin bond, in which Lindner, the plaintiff in error, was one of the sureties. Brock was at that time the sheriff of Bay county, and the writ of replevin was executed by the coroner. The sureties in the replevin bond were [620] excepted to, and failed to justify, and Hogan offered no other bond. This under the statute entitled Brock to a discontinuance of the suit, and he took judgment accordingly, electing to have a return of the property. A writ de ritorno was issued on this judgment, on which the coroner was able to find and return a part of the property only. The replevin bond was thereupon assigned to Brock, who brought suit upon it. On the trial, after plaintiff had made a prima facie case, the defendants offered to show that plaintiff, when the goods were replevied, held them as sheriff under attachments against George E. Smith, and not otherwise; that the attachments were all issued after September 1, 1877; that on November 26, 1877, Smith filed his petition in bankruptcy in- the District Court of the United States for the Eastern District of Michigan; that on the 30th of that month Smith was adjudged a bankrupt, and on the tenth day of December following an assignee in bankruptcy, was duly appointed, and an assignment made to him; that all this took place before any execution was issued in the attachment cases. This offer was objected to, .and ruled out. Had the evidence been given, it would have shown that at the time this suit was brought the sheriff, as against the assignee, had no special interest whatever in the goods; the attachments being dissolved by the adjudication in bankruptcy and assignment within four months of their issue. Rev. Stat. of U. S., § 5044. The evidence would thus have shown that the sheriff had never been damnified by the proceedings in replevin, and that as- between himself and the assignee in bankruptcy, he should surrender to the latter the possession of the goods replevied. It would thus have been made manifest that there could be no equity in any recovery by him in this suit. It is insisted, however, that under previous decisions of this court, the evidence was not admissible. Dorr v. Clark, 7 Mich., 310, and Williams v. Vail, 9 Mich., [621] 162, are particularly referred to. In Dorr v. Clark it was decided that the sureties in a bond given to obtain release of property from an attachment, admit by giving the bond the title in the attachment debtor, and cannot be allowed in a suit on the bond to dispute it. A similar ruling was had in Williams v. Vail, in an action on a replevin bond. But the evidence offered here did not question the title of Smith, but admitted it. It was therefore in no sense inconsistent with any admissions of the sureties implied in giving the bond. Had the demands for which attachments were taken out been subsequently paid, it would clearly have been admissible for these sureties to show the fact in mitigation of damages in a suit on their bond. The sheriff is equitably entitled to nothing beyond what would indemnify him; and in that case he could have lost nothing. But if the attachments were dissolved by bankruptcy proceedings the case is not different. In either case the sheriff is not damnified. We think the proposed showing was clearly within the equity of the statute (Comp. L., § 6766) which permits defendants in suits on the replevin bond to show in mitigation of damages the extent of the plaintiff’s special interest. They proposed to show in this case that the special interest had wholly ceased. There is nothing in the objection that, as the assignment in bankruptcy took place before the judgment in replevin, this defense ought to have been made in the replevin suit. The sureties in the bond were not parties to that suit, and could have no control of it. Defendants also offered to show that some portion of the replevied property which the coroner had been unable to return on the writ de ritomo had been seized by the sheriff himself on other writs against Smith, and sold to satisfy them. This offer we also think was improperly overruled. The sheriff cannot compel these defendants to respond in damages for failure to restore to him what he has already possessed himself of. [622] Whether he had a right to sell the goods on other writs is a question to be settled between him and the attaching or judgment creditors, and the assignee in bankruptcy. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred.