Phenix v. Clark , 2 Mich. 327 ( 1852 )

By the Court, Pratt, J.

In this case several questions were mooted by counsel on the argument, which need not now be considered. There are, however, some presented by the record, of sufficient importance for consideration, and upon which the case must be determined.

This action was properly brought in the name of the supervisor, who was ex-officio assessor of his township, and especially required by statute to preserve and keep all books, assessment rolls, and other papers belonging to his office, &c.. (B. S. of 1840, p. 91.) By this provision he was not only required to preserve and keep the assessment roll in his office, but officially had the absolute and exclusive right to the possession of it; and under another provision of the statute, he was legally authorized and empowered to institute the suit, in his official character, to recover the possession thereof. (B. S. of 1846, p. 529, Sec. 1.)

The affidavit attached to, and upon which the writ of replevin in this case was executed, is not only awkwardly drawn, in view of the clear and very explicit direction of the statute on the subject, but is legally defective. The language of the statute is, “that such writ shall not be executed in any case, unless the plaintiff in the action, or some other person having a knowledge of the facts, shall make and annex to the writ an affidavit, stating that the plaintiff in the action, is then lawfully entitled to the possession of the property described in the writ, and that the same has not been taken for any tax, assessment or fine, levied by virtue of any law of this State, nor seized under any execution or attachment against the goods and chattels of such plaintiff liable to execution, and that such goods and. chattels are unlawfully detained by the defendant in such writ.” (B. 8. of 1846,^?. 546, Sec. L) The affidavit in this cause does not contain a statement, “that the property was not taken for any assessment levied by virtue of any law of this State;” nor does it contain a statement, “that it was not seized under any exeention against the -goods and chattels of the plaintiff, liable to execution.” The affidavit, therefore, is not in compliance with the requirements of the statute, which are imperative, aud cannot he dispensed with.

The nature of thé property replevied in this ease, is such that the omission in the affidavit might be regarded immaterial, was it not for the positive requirements of the law, and which were expressly intended by the Legislature to apply indiscriminately, to every action of replevin, whether brought in a justice’s Court, or a Court of record, and they cannot be altered or in any manner disregarded by Courts. The action of replevin is created, jurisdiction conferred, and the whole course of proceeding pointed out aud regulated by the statute; and if the plaintiff below could not make the required affidavit, he was not legally entitled to the benefit of the action.

There is another fatal error in this case. The Court could not legally award to the plaintiff below any more than mere nominal damages, without proof. On the trial below, no evidence of any kind whatever was submitted or offered on this branch of the case; and yet the Court rendered a judgment for fifteen dollars damages. The statute provides that “if upon the trial of the cause, the verdict be in favor of the plaintiff, the same jury shall assess the damages which he has sustained by the unlawful taking and detention, or by the unlawful detention of the property; hut if judgment passes for the plaintiff by default or upon an issue of law, the damages may he assessed by the Court in the same manner as in personal actions.” (H. S. of 1846, p. 549, sec. 28.) This provision of the statute clearly contemplates not mere nominal damages, but such actual damages as the plaintiff has in fact sustained by reason of the taking and detention, or the unlawful detention of the property; and they are not to be inferred, hut must he proved. A jury is not authorized in such a case, to assess actual damages without proof; nor is a Court in personal actions, where judgment passes for the plaintiff by default or ou demurrer, authorized to assess his damages without proof. In the case under consideration, the action was brought by the plaintiff below, in his official character, to recover a certain assessment roll — a paper belonging to his office. The paper was recovered; and what damages could he have officially sustained by reason of the temporary detention of it by the defendants ? Not any; but if he did, he was legally required to prove it. There was no legal presumption arising upon the subject independent of proof. And if without proof, the Court could have rendered a judgment in the case for fifteen dollars damages, why not for two hundred and. fifteen ? There is no legal ground upon which such a principle, in adjudicating and settling personal rights, can he tolerated.

The judgment below therefore, upon the two last points, must be reversed.