In re Gould , 31 Del. 218 ( 1921 )

Pennewill, C. J.,

after stating the case as above, delivering the opinion of the court:

The rule is now before the court, and the question to be determined is, whether goods and chattels taken by the sheriff of the county under a writ of replevin issued out of this court may be taken from the sheriff while in his custody and in custodia legis under a writ of replevin issued by a justice of the peace.

Respecting the preliminary objection made to the rule by the defendant, viz. that the right of the justice of the peace to issue the writ complained of cannot be determined in this proceeding, we will say that the sheriff is an officer of this court, and in the execution of the writ of replevin placed in his hands was acting under the direction of the court, and as its agent. He had, therefore, after the second writ was issued, the right to ask the court for instruction, respecting- the delivery of the property to the plaintiff, no counter bond having been given. A petition and rule to show cause was the proper proceeding to bring the parties in interest into court, and to present the matter in controversy to the court.

Prior to 1917 justices of the peace had not jurisdiction in replevin, but it is now provided by 29 Del. Laws, 836, c. 255, that:

“Justices of the peace shall severally within their respective counties have concurrent jurisdiction with the Superior Court of actions of replevin and detinue where the value of the property in controversy does not exceed the sum of two hundred dollars. ($200.00).”

It is well settled that by the service of a writ of replevin the court from .which the writ issues obtains possession and control of the property replevied for all purposes of jurisdiction in the replevin suit and no other court can subsequently interfere with such possession. The property replevied cannot be subject to two jurisdictions at the same time.

The property taken is in the custody of the law, whether in the hands of a party to the suit who has given bond, or held by the officer who executed the writ, and cannot be taken by a second writ, although the person procuring it is a stranger to the original replevin suit. Cobbey on Replevin, §§ 706 and 709; Hagan v. Lucas, 10 Pet. 400, 9 L. Ed. 470; U. S. v. Dantzler, 3 Wood, 719, Fed. Cas. No. 14,1917; Williams v. Morrison (C. C.) 29 Fed. 282 Id., 28 Fed. 872; 23 R. C. L. 881; Welter v. Jacobson, 7 N. D. 32, 73 N. W. 65, 66 Am. St. Rep. 632. These propositions are not only supported by the weight of authority, but we have seen none to the contrary. Such being the law, we are constrained to hold that the automobile in question could not be taken from the possession of the sheriff under the writ issued by the justice of the peace, and the rule must, therefore, be made absolute.

But while the sheriff is authorized to deliver the automobile to the plaintiff in his writ, he must, before making the delivery, give the defendant a reasonable time to give a counter bond. Under the law as declared in the case of McCall v. Milton Stern and Joshua Z. Crossland, Sheriff, 7 Boyce, 233, 105 Atl. 666, such an opportunity must be given the defendant in a replevin case, and in view of the peculiar facts of this case the courtis of the opinion that the defendant should have the same opportunity to give counter bond now that he would have been entitled to if the writ had not been issued by the justice. And the same opportunity may be taken advantage of by Mary J. Cole, the plaintiff in the replevin •writ, issued by the justice of the peace, for she would have the right to intervene in the suit pending in this court and give counter bond. Pond v. Benzik, 6 Boyce, 451, 100 Atl. 476.