Westenberger v. Wheaton , 8 Kan. 169 ( 1871 )

The opinion of the court was delivered by

Kingman, C. J.:

An execution was issued against the plaintiff in error, a discharged bankrupt, and was levied upon his goods. He thereupon brought an action of replevin for the property against the sheriff, and obtained the possession of the goods so levied on. The sheriff, defendant in error, filed an answer admitting the property to have belonged to plaintiff on the 10th of January, 1870, but that on that day he as sheriff of Bourbon county by virtue of the execution, which he sets out in full, levied on the goods, and by virtue of said levy he held the goods and was entitled to the possession thereof. To this answer plaintiff filed his reply, not denying the allegations of the answer, but alleging, 1st, That he was legally released from the claim and judgment on which the execution aforesaid was issued, by ca discharge in bankruptcy, under the laws of the United States, issued by the District Court for the District of Kansas, which discharge is set out in full. 2d, That on the 22d'of January, 1870, the judgment on which said execution was issued was by the district court of Leavenworth county discharged. To this reply said defendant demurred, and the court sustained the demurrer to the second ground of reply and overruled it as to the first, and plaintiff excepted. On the trial the court refused to permit the plaintiff to introduce any testimony. Defendant then introduced testimony tending to show the value of the goods, and the jury were instructed to find for the defendant, to find also the value of the goods, and the defendant’s interest in them at the time they were taken from him, which was the amount he was required to levy under the execution set up in the answer. To the refusal to receive the testimony offered by him plaintiff excepted; and to the testimony offered by defendant plaintiff also excepted. The judgment on which the execution issued was rendered on the 19th of December, 1866, in Leavenworth county. This execution was issued on the 8th of December, 1869, and was levied on the 10th of January, 1870, and the goods were replevied the next day. The certificate in bankruptcy was issued on the 2d of January, 1868, as shown by the copy attached to the reply.

It will be observed from this summary of the record that the plaintiff does not deny any part of the answer, so that all that is new matter must be taken as true. The plaintiff by his reply sets up a discharge in bankruptcy as showing that the judgment had been discharged thereby, and also that after this suit was commenced a discharge of the judgment had been entered upon the records of Leavenworth county. But the existence of the judgment, the issue of the execution thereon, and the levy and seizure of the property thereunder, are not denied, and are to be considered as admitted facts. This state of the pleadings raises a question the decision of which will go far to dispose of all the errors alleged.

l. Asaa-vit for óonstrnciion of statute. g. object ana purpose of statute. 3.Exception; erty!ip piop Has the defendant in an execution, regular upon its face and issued by the proper authority, and by virtue of which the officer to whom it, is directed has levied upon and taken possession of the property of such defendant, the right to recover such property by proceedings in the nature of an action of replevin? It is conceded in the argument that if the judgmeD-t 011 which the execution issued, is a valid judgment, that it cannot be brought in question py -¡q¿s ]¿n¿ 0f action> No one can question this conclusion who will read the fourth clause of section 177 df the code, which is as follows: “ That it was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of an order of delivery issued under tin's article, or any other mesne or final process issued against said plaintiff.” All these facts must be sworn to exist before the order of delivery can be made; a fortiori they must exist as facts.^* But tbe clause does not confine tbe facts to a valid judgment. A valid judgment cannot be successfully contested in any way except by proceedings to set it aside. So that tbe object of tbis clause of tbe section is not solely to protect tbe process of tbe court when issued on a valid judgment. Tbe object of tbe clause, as drawn from its ° _ language, and irom other parts oi the section, as well as from tbe bistory of tbe action known as replevin, is to compel a party wbo desires to contest tbe validity of cmy judgment or order of a court, or any tax, fine, or amercement, or cmy other mesne or final process so to do in some other way than by seizing property already in tbe custody of tbe law. An order of attachment is most frequently issued by tbe clerk under tbe law. If improvidently issued, and property is seized, tbe remedy is not tolerated of taking it out of tbe possession of tbe law, and by sneb a proceeding trying tbe validity of tbe order, or writ. A safer and more reasonable remedy exists. Much less ought tbe validity of a judgment to be contested in such a proceeding. If tbe execution is improperly issned, or tbe judgment-creditor wrongfully causes an execution to be issued on a satisfied or discharged judgment, tbe remedy is plain, and well adapted to try tbe question, while tbe action of replevin is not. And so tbe code has written the law. We may revert to the fifth danse of the same section as an apt illustration of the legislative wisdom in the law, for it provides that where the property taken in execution or on any order or judgment against the plaintiff is exempt by law from being so taken then the order may issue; for in such a case the validity of the judgment, or order, or the execution, is not brought in issue, and cannot be. For the purpose of such a case they must all be admitted, and a new issue made as to property seized under valid and regular process. Nor, under proceedings under this clause, do we suppose the plaintiff could litigate, by any issue he might offer, any of the steps in the proceeding except a wrongful levy upon property not subject thereto.

At common law if cmy person should take out a replevin for property taken in execution issuing from a superior court, the court would commit him for a contempt of their jurisdiction 1 Chitty Pl., 164. The code has so modified this that any person other than the judgment-debtor, or person against whom the process is issued, may have this remedy, because the issues made in any such proceeding by a stranger raise no question as to the validity or regularity of the judgment or process; and several of the states have adopted statutes similar to ours. The' wisdom of our code on this subject, as we construe it, is vindicated by the following observations, showing the utter confusion that would result from the code if the construction should be given to it claimed by the plaintiff in error: “If a defendant in the execution, after judgment had been legally entered against him upon a full and fair trial, were tolerated in bringing his action of replevin, and by it to replevy the goods taken in execution, there might be no end to the delays which the defendant might thus create. Justice and the end of the law would be effectually subdued, for although the defendant in the execution and plaintiff in the action of replevin would fail upon the trial, and judgment would be rendered in favor of the officer for the restoration of the property, yet the action might be again and again renewed, and.delay without end effected. To prevent such abuses, and such contempts of the authority of courts, to prevent the monstrous absurdity of rendering the remedies afforded by law with a view to redress wrongs the means of defeating the very end to be accomplished, the defendant in an execution, who should thus pervert the action of replevin, might and ought to be severely punished for contempt.” Phillips v. Walker & Harris, 3 J. J. Mar., 124.

A further reason against the construction claimed is, that the redress afforded by the action of replevin is not complete. The plaintiff in error is not complaining of this; but still it may be mentioned as a reason for not giving the section a construction its language will not readily bear. If replevin would lie, and the plaintiff was successful, still another execution might issue, and endless litigation ensue, unless the defendant in the execution should have the matter corrected by appropriate proceedings in the court from which the execution issued.

4. Averments in affidavit must lie true. But it is claimed that the petition need not contain the same averments as the affidavit. The latter is to obtain immediate possession. The action may proceed, though imine- . 0 f , i ° t> a /1 díate possession be not sought, wanted. Jtfut the averments in the affidavit must be true, or replevin does not lie; and if immediate possession is not sought there is no replevin, and the supposed case is not this ease. Here immediate possession was sought, and obtained. The facts admitted by the pleadings did not permit it; and therefore the court below did not err in preventing the plaintiff from introducing testimony.

Neither was there error in excluding the testimony when offered to lessen the amount of the verdict; for the plaintiff in error, if aggrieved, had a most ample remedy. Let him return the property to the custody of the law, whence he had unlawfully taken it, and correct the error by appropriate proceedings in the proper tribunal. This conclusion disposes of the whole case; for even if it was error to sustain the demurrer to one count of the reply, and overrule it as to the other, when the demurrer was to both, still it was error against the defendant in error, for both counts of the reply were bad.

VAT.wmng, J., concurring. Brewer, J., not sitting.

* [* As a question Praotioe, the language of the text will scarcely he construed as requiring the plaintiff in replevin on the trial of the action to prove the negative averments required hy the 4th clause of § 177 of the code, (and § 56 of the Justice’s Act,) to he inserted in the affidavit, whether such averments are repeated in the petition or not. In Carney v. Doyle, 14 Wis., 270, the Supreme Court of Wisconsin, in an action which originated in a justice’s court decided that “it is not necessary for the plaintiff to prove ” “ that the property he seeks to recover had not heen taken for any tax or hy any execution or attachment against him.” These matters “must exist as facts;” hut a mere denial'by the defendant does not put'them in issue so as to “throw upon the plaintiff the burden of proving a negative, or of disproving any justification for the taking of his property.” “The object of the statute in requiring these averments,” says the Wisconsin court, “ was to prevent parties who knew their property had heen thus taken from replevying it.” But whenever a defendant seeks to justify the taking, he is required to allege and prove affirmatively such facts as constitute legal protection; and he may, if he can, allege and prove that the property was taken under legal process against the property of the plaintiff. Such proof duly made defeats replevin brought hy such plaintiff, (except where the property is hy Jaw exempt,) because in such case the matters stated in the averments are shown not to “ exist as facts,” and the action cannot he maintained. See also. Hudler v. Golden, 36 N. Y., 446; O'Reilly v. Good., 42 Barb., 521. —Reporter.]