Corbett v. Pond , 10 App. D.C. 17 ( 1897 )

Mr. Justice Morris

delivered the opinion of the Court:

We cannot assent to the proposition that, when a suit in replevin has been instituted in this District by a foreign executor or administrator, or, indeed, by any nonresident, and the property sued for has been seized under the writ and delivered to the plaintiff, and the plaintiff thereafter thinks proper to abandon the suit, and yet retains the property, the defendant, from whom the property has been taken under process of law, practically shown by the abandonment of the suit to have been unjustifiable, has no redress in the tribunal which issued the process, and must have recourse to the tribunals of the foreign State where the plaintiff resides, or from which he received his commission. The adoption of such a proposition would lead to the most monstrous results, and would make the administration of justice in many cases a shield” for wrong and a cover for oppression; and the proposition does not commend itself to us as being in accordance with reason or justice.

But it is proper to make some inquiry into the nature of the suit before us, so as the better to determine the merits of the proposition and the merits of this case.

The action of replevin is not, strictly speaking, a common law action, but mainly, if not entirely, of statutory origin and of a peculiar nature. See 3 Blackstone’s Com., p. 146-151. And with us it is so greatly regulated by statute (Rev. Stat. U. S. for D. C., Secs. 814-824) that it may be said to have wholly lost any common law character which it may have had, and to depend for its efñcacy entirely upon statutory provisions. For the sections of the Revised Statutes referred to provide, not only for the form of the declaration to be filed, but likewise minutely and in detail for all the subsequent proceedings, and for the different forms of judgment to be entered in the different contingencies that might occur.

In this action of replevin, differently from all other actions at common law, both parties are actors. Both are plaintiffs and both are defendants. This is the logical result of the fact that under the peculiar operation of this action there is practically a recovei’y by the original plaintiff, when he files his declaration, affidavit and undertaking, as required by the statute, and thereupon sues out his writ. For thereafter it is incumbent upon him only to prove his title to the property in controversy, and upon proof of such title satisfactory to the jury, he recovers only a nominal judgment, that is, for costs and usually nominal damages, for in the possession of the property he has already the substantial fruits of judgment; while upon the defendant it is incumbent not only to overcome the plaintiff’s claim of title, but likewise to prove the value of the property and his own right to have it returned to him; and the judgment, if he succeeds, is not such a judgment as would be rendered in other eases — a judgment merely that he go without day and recover his costs — but a substantial judgment for the recovery of the property, for the value of it if it has been eloigned, and for damages for the unlawful seizure. In fact, it may be said that, ordinarily in the action of replevin the only substantial judgment is that which is authorized to be rendered for the defendant in the event that he prevails in the suit.

It is very evident, therefore, that in this suit the defendant is greatly more the actor than is the original plaintiff. Indeed, in most cases the plaintiff would be entirely satisfied to be permitted to withdraw from the suit and to abandon it immediately upon the delivery of the property to him under the writ. But to permit him so to do would, of course, be a gross prostitution of the processes of justice. It is not competent for the plaintiff, in an action of replevin, as it is in other actions, to discontinue or dismiss his suit or voluntarily to withdraw from it, -without the consent of the defendant, after the property has been delivered to him under the writ, unless he returns the property taken or makes good to the defendant the loss sustained by him by the taking. And this is for the reason that,-after the property has been seized and delivered to the plaintiff, the defendant becomes the virtual plaintiff in the case. This is elementary law; and it is the natural dictate of justice. Jones v. Concannon, 3 T. R. 661; Barrett v. Forrester, 1 John. Cases, 247.

But no more by the plaintiff’s death, nonresidence, or removal from the jurisdiction, than by his voluntary abandonment of the suit, can the defendant be barred of his right of restitution of the property. That right is an absolute right in the pending suit in the event of the failure of the plaintiff for any cause to prove his title. The seizure and delivery of the property to him depended for their efficacy and permanency upon the condition that he should thereafter in that suit maintain the validity of his right and title thereto. If for any reason he failed to perform that condition, the defendant became entitled to a return of the property, and to have judgment therefor. It would be absurd to suppose that the plaintiff’s death would sanction his title, determine the suit in his favor, and wholly absolve him from the performance of the condition upon which alone he had obtained possession.

It is true that, assuming the plaintiff to have virtually become the defendant, and the defendant to have virtually become the plaintiff in this action of replevin, the death of one of the parties in this as in other actions precludes further proceedings against him or his estate until his representative becomes or is made a party to the suit. And it is also true that an executor or administrator is not, in general, bound to continue litigation undertaken by his decedent ; nor is an administrator, de bonis non, bound to continue litigation undertaken by his predecessor in the administration. But in view of the peculiar character of the action of replevin, such as we have stated it to be, a defendant has the right to compel an executor or administrator to become a party to the suit; and it is not at the option of such representative of the estate of a decedent to prosecute or abandon the suit as he thinks proper. He can only abandon it upon condition of returning the property to the defendant, or making good to him the loss which he has sustained by the unlawful taking which is confessed by the abandonment.

The difficulty which is presented here of the impossibility of compelling the appearance of a nonresident or foreign administrator, and against which it seems that no provision was made by Congress when it enacted the statute authorizing suits in this District by foreign executors or administrators, presents no insuperable objection to further action in the present case. For it is not sought here to continue the proceeding against the foreign administrator or against the estate which he represents, but only against another person, one within the jurisdiction of the court, who has become a party to the suit and who has made himself amenable to a judgment against him in this cause in favor of the defendant, namely, the surety upon the undertaking.

Section 816 of the Revised Statutes of the United States for the District of Columbia, being one of the provisions regulating the action of replevin, provides that “the plaintiff shall at the same time (that is, at the time of filing his declaration) enter into an undertaking with surety, approved by the clerk, to abide by and perform the judgment of the court in the premises.” The form of undertaking given in the present case, apparently in accordance with the requirements of the rules of the Supreme Court of the District of Columbia, added a provision not required or prescribed by the statute, but which would seem to be a proper requirement, and one at all events against the validity of which no question has been or can well be raised here. This provision is to the effect that the judgment, which it was undertaken to abide by and perform, might be rendered against both of the parties to the undertaking, that is, against the surety as well as the principal. In that regard, of course, the undertaking was effective only as against the surety, for the plaintiff, who was the principal, would have been bound without it.

The purpose of this undertaking was like that of-a recognizance to introduce a new party into the proceeding, who should become bound by the judgment, if judgment there should be against the plaintiff, and liable for its performance; and the undertaking is authorized rather than a bond, as in many other cases, to avoid circuity of action, and to justify the entry of judgment in the same suit both against the principal and the surety, instead of resorting to another action to enforce the liability of the surety. It is not questioned that, if this suit had gone on to trial and judgment in due course, the plaintiff surviving, and the issue had been found against the plaintiff, the judgment might properly have been rendered against both the plaintiff and the surety, in pursuance of the undertaking. That we understand to be the usual course of action in such cases. And from this it necessarily results that, so far as the surety was concerned, and so far as the defendant was an actor in the action, the suit was one upon the undertaking, in which a judgment, if in favor of the defendant, might be against either or both of the parties to the undertaking, according to circumstances.

It is of no consequence whether the undertaking was a joint or a joint and several obligation. By the death of the principal, the surety became solely liable upon the instrument; and the cause could properly be prosecuted to judgment thereon as against him. The only alternative to this proposition would be, that, by the death of the principal, the plaintiff in the suit, the surety would be released, — which would be a novel and unauthorized theory of law that would render all obligations given in legal proceedings hazardous and many of them useless. The law never contemplated any such condition of things.

In opposition to the conclusion here reached the case of Danenhower v. Ball, 8 App. D. C. 137, decided by this court at its last January term, is cited, wherein it was held that, by the failure to bring in the representative of a deceased plaintiff by the tenth day of the second term of the court after the suggestion of the death, the action became absolutely abated beyond the power of revival by any one, in pursuance of the provisions of the act of Maryland of 1785, Chap. 80, Sec. 1. But that plainly cannot apply to the case where there are two or more parties plaintiffs, against the survivor or survivors of whom the action may be continued. And we have held that the effect of the undertaking given in this action of replevin was to make the surety a party to the suit equally with the plaintiff.

It is proper, also, to notice another question that has been raised by the appellee. It is that the order appealed from is not a final order, and therefore not the subject of appeal. But this objection is not tenable. In general, any order is final which puts an end to the litigation, or definitely and permanently arrests its progress. It is not merely judgments and decrees that are regarded as being final; all orders are such-that dispose of and terminate a pending suit. Beyond question, the order in the present case is of that character; for as long as it stands no further action in the case is possible.

From what we have said it follows that, in our opinion, it was error in the court below to enter- the order here appealed from; and that the motion of the defendant for a jury of inquest should have been allowed. The cause will, therefore, be remanded to that court, with directions to vacate such order, and for such further and other proceedings as may be proper in the premises and in accordance with law. And it is so ordered.