Kates v. Thomas

By the Court Beeey, J. The plaintiff brought an action of replevin before a justice of the peace against the defendant and one J. C.- Kates, alleging in her complaint that the appellant Thomas was in possession of the property claimed, and that J. C. Kates claimed the same as belonging to himself, for which reason he was made a co-defendant. By virtue of the writ of replevin the property was taken and delivered to the plaintiff, as appears by the coroner’s return. The jury found that Thomas was entitled to the possession of the property replevied, and assessed its value at 828. The justice thereupon rendered judgment against the plaintiff and in favor of Thomas for the sum of twenty-eight dollars and costs. The plaintiff, and the defendant J. C. Kates, took separate appeals to the district court upon questions of law alone. The district court reversed the judgment as to all the parties, and from the judgment of reversal Thomas alone appeals to this court, and his co-defendant makes no appearance here. The reasons for the reversal do not appear, but it is said by the plaintiff that [462] tbe justice’s judgment was properly reversed, because it was for the value of the property, instead of tor the return of the property, or its value. Sec. 88, p. 433, Gen. Stat, provides that in cases of this kind the defendant “ may have judgment for the return of the property, or the value thereof, if the same has been taken from his possession, or delivered to the plaintiff.” The plaintiff insists that the judgment should have been in the alternative; that it was her right to have the judgment in such form as would permit her to return the property. The statute is ambiguous, but we think this is its proper construction. If this is not the true construction, then the defendant is obliged to make an election, and to take judgment for a return, or judgment for value, and he cannot take judgment in the alternative ; and as there will be cases in which it will be impossible for him to determine at the time of taking judgment which form of judgment will best secure his rights, the statute should be so interpreted, as it certainly may be in this case, as to permit him to take his relief in the most beneficial and effectual form ; that is to say, in the alternative. This construction of the statute is also in harmony with a provision on the subject of actions for the recovery of personal property found in sec. 249, p. 485, Gen. Stat. See also Glenn vs. Younglove, 27 Barb., 484 ; Dwight vs. Enos, 5 Selden. 4-72; Fitzhugh vs. Wyman, Ib., 559. We think, however, as urged by the appellant, that the district court should have modified and corrected the judgment of the justice, instead of- reversing it. The appeal was upon questions of law alone, and in such cases the appeal is to “ be tried in the district court upon the return of the justice.” Sec. 107, p. 435, Gen. Stat., as amended,p. 135, Laws 1868. The statute does not say that the judgment appealed from shall be reversed, affirmed or modified, [463] but that the appeal shall be tried. It is to be heard and examined upon the return of the justice, and is of course to be determined in some way, and as there is nothing in the statute to prevent, we see no reason why it should not be determined so as to administer complete justice, where the fa.cts of the return will permit. Here, so far as the point which we have considered is concerned, the only cause of complaint is the form of the judgment, a judgment rendered upon the verdict of a jury, and which could be properly rendered in .one form only ; we can conceive of no reason why the district court should not be allowed to modify and correct it so as to make it right, and administer justice final and complete. ~We are therefore of opinion that the district court erred in reversing the judgment of the justice. It should have been modified and corrected so as to read in the alternative, as above suggested. As to the point made in regard to the admission of the execution, we are unable to sec how its admission could have prejudiced the plaintiff. So far as appears in the paper book, the co-defendant J. C. Kates was the only person who could have been affected by it, and he made no objection, and took no exception to its admission. The judgment of the district court is reversed, and the case remanded for judgment in accordance with the views herein expressed.