Irey v. Gorman

Siebecker, J. This case comes within rules announced by this court in its earliest decisions. The officer for whom defendant claims to have acted as custodian of the mare when this replevin action was instituted held her by virtue of a writ, of attachment in an action against the plaintiff. The attachment suit is still pending. In a case where the parties were similarly situated, this court said: “The general doctrine that an officer is protected in his acts performed in obedience to the command of a valid process placed in his hands to be executed is too well settled to be [10] doubted. In this case the writ of replevin commanded the officer to take the property in dispute and deliver it to the plaintiff upon his giving the bond required by the statute. We see no reason why the officer should be made liable to an action for doing that which bis duty required of him.” Watkins v. Page, 2 Wis. 98, subsequently approved in Weinberg v. Conover, 4 Wis. 803, Griffith v. Smith, 22 Wis. 646, and other cases. The defendant asserts a legal right to the possession of this mare as receiptor to the officer who bad levied upon and held her under the writ of attachment in an action against the plaintiff. It is abundantly established by express adjudications that a receiptor to an officer for property which has been taken by a lawful writ is in possession for such officer. His possession is, in law, that of the officer to whom be is accountable. When be is shown to stand in that relation to the officer, he may rest bis right to maintain possession upon this principle, as against the plaintiff’s claim. Stern v. Riches, 111 Wis. 589, 87 N. W. 554; Mayhue v. Snell, 37 Mich. 305; Wells, Replevin, § 131. The defendant alleged and proved that at the time of the commencement of this replevin suit be was in possession as receiptor to the officer who bad attached the mare in a suit against the.plaintiff as owner. Some claim is made that the evidence fails to show that the acts of the officer under the writ of attachment in justice’s court against this plaintiff did not constitute a levy, in the law. We think it appears sufficiently that the levy was properly made under the writ, and that the defendant did receipt to the officer for the mare. The motion for direction of a verdict in defendant’s favor was properly granted. By the Court. — Judgment affirmed.