Krosmopolski v. Paxton

Ciialmeks, C. J., delivered the opinion of the court. Appellant sued out a writ of replevin against appellee for four bales of cotton, under and bj' virtue of which the sheriff succeeded in finding and seizing one bale only. A return to this effect having been made upon the writ, the plaintiff (appellant) filed a declaration with two counts: the first, the usual one in replevin for the bale seized, and the second for the value of the three bales not found, basing his right to do this on sect. 2619 of the Code of 1880. That section is in these words: “If the return of the officer on the writ shall [584] show a failure to take the goods and chattels, but that the defendant has been summoned, the plaintiff may declare and prosecute the action for the recovery of the value of the property and damages for the taking or detention, or for a conversion of the property, as if he had thus commenced his action.” We do not think that this section was intended to authorize the institution of an action of replevin in eveiy instance where trover, detinue, or case is the appropriate remedy, and the subsequent conversion of the replevin into one of the last-named actions upon a return of “ not found ” as to the property. Such a construction would result in a universal resort to the action of replevin, since in this way a trial could be had and judgment obtained at the first term of the court, and the defendant’s right to an imparlance term be thereby defeated in a large class of actions. We think that the object of the statute was merely to prevent the abatement of the. writ where the property sought to be recovered was really in the possession of the defendant at the date of the affidavit iu replevin, but the sheriff from any cause failed to seize it. In such cases, and such only, if the defendant has been personally summoned, the suit may progress as a personal action, remaining, however, an action of replevin as to the forms of procedure and period of trial. It will hence be defeated by showing that the property was not in the possession of-the defendant at the time of the institution of the action. In ■other words, the intention ivas to prevent a defeat of justice and an accumulation of costs in cases where the plaintiff, having a clear right to maintain replevin, was liable, under the old law, to be baffled and thwarted by the secreting or disposing of the property after proceedings commenced, or by the inefficiency of the officer in failing to find it. Where no right to maintain replevin existed originally, it was not intended, under the guise of that writ, to authorize the bringing of detiuue, trover, or trespass. The question presented by the record is, whether the statute [585] applies where a portion of the property sued for is seized by the officer, and a portion not. If the statute does not apply in such cases, the singular result is produced, that the right of the plaintiff to maintain his suit is broader and more valuable where his writ of seizure wholly fails than where it is partially effective. We think he has a right to the benefit of the statute whether the failure to seize the property is total or partial. In the one case he declares for the value of the whole property, and in the other for the return of so much of it as has been seized and for the value of that portion returned as not found. His right to recover as to either or both depends upon his showing that he is entitled to the possession, and that the possession was, at the date of the filing of his affidavit, wrongfully withheld from him by the defendant. The suit remains, in either event, an action of replevin, and is triable at the first tei-m. Under the provisions of sects. 1732,1733, of the Code of 1880, there can be no difficulty in shaping the verdict and judgment so as to meet the recpiirements of the different phases of the case. Where there is a failure to recover for the property not seized, because it is not shown to have been in the possession of the defendant at the time of the institution of the action, care should be taken to embody this fact in the verdict or judgment, so as to avoid a plea of rex adjudícala in any subsequent proceeding to recover it. Reversed, and new trial awarded.