Davis v. Bayliss , 51 Iowa 435 ( 1879 )

Rothrock, J.

i. replevin : with defend-Mon.'111Jim0 — It appears from the evidence that the plaintiff, Davis, has been in the actual possession of the harvesters since the commencement of the action in replevin, and that he now has such possession. It is true, after the judgment of the court below was affirmed in this court, he offered to deliver the possession of the property to the sheriff, and he paid the costs of the action, and claims that since the service of the writ of replevin he has only held possession as the bailee of Bayliss. We think he is too late in making such claim. If Bayliss was in possession of the property by virtue of the writ of replevin, at the time the alternative judgment was rendered, the objection to the judgment should then have been presented. If such objection had been interposed, and it had been made to appear that Bayliss had the possession, we have no doubt the judgment would have been merely one confirming his title. But no such question was raised in the court below, nor in this court, and it seems to us the plaintiff is putting himself in the position of electing to deliver the property to Bayliss, rather than allowing the latter to elect whether he will take the money judgment or the property. That he has the option to have execution for the property, or for the value thereof as determined by the jury, is plainly provided in section 3241 of the Code.

The taking of a receipt for property by the sheriff, from a defendant in an action for replevin, is unknown to the statute. By the Code, § 3234, the sheriff having taken possesion of the property is required to deliver it to the plaintiff. It is true the defendant may retain possession by executing a bond with sureties as provided by section 3235. The return of the sheriff and the receipt attached thereto were not correct. He did not take actual possession. The actual possession never changed. When the court enters a judgment for the plaintiff in replevin, and it appears that the defendant is in the actual possession of the property, the alternative judgment is proper. At least, if there is any arrangement between the parties by which the possession of the defendant is to be held as the possession of the plaintiff, such claim should be made when the judgment is rendered.

It appears from the evidence in this case that the receipt was taken by the sheriff upon his own motion. He testified as follows: “I never delivered the property to plaintiff, and never got any authority from him to take a receipt of that, kind.” And there is nothing in the record to show that Bayliss ever ratified the act of the' sheriff in taking the receipt. Indeed, it appears by implication, at least, that he did not ratify such act, for he took the alternative judgment, and reserved the right to elect which he would pursue, the property or its value.

Affirmed.