Farrah v. Bursley ( 1894 )

Hooker, J.

The only question which we will consider upon this record is whether a justice of the peace may order a return of replevied property where a judgment is rendered in favor of the defendant upon the sole ground that he had a lawful possession at the time the writ issued, because no demand had been made; the plea of the general issue, simply, having been interposed. The circuit court disposed of the case upon the assumption that the record made it possible to infer that the justice’s judgment might have been based upon further facts consistent with defendants’ right to a return, but we think the record clearly negatives such inference. There is nothing to indicate any claim of ownership, or right to continued possession against demand, upon the part of the defendants.

Under our statute a replevin suit may be defeated upon several grounds under the plea of the general issue, among them:

1. That the defendant did not detain the property when the action was commenced.

2. That he came lawfully into possession, and, though in duty bound to surrender to .the plaintiff on demand, could not be said to detain unlawfully before demand and refusal.

In the first case there would appear to be no reason why the defendant should be awarded a return of property which he never had or claimed, and it is the settled law of this State that a return will not be ordered under such circumstances. Gidday v. Witherspoon, 35 Mich. 368; Hinchman v. Doak, 48 Id. 168. These cases show that a defendant may be denied a judgment for a return of the property where the record shows that he has no right to it.

In" the state of New York, it is the well-settled rule that the defendant must plead title, if he desire a judgment for the return of the property. People v. Niagara Common Pleas, 4 Wend. 217; Bemus v. Beekman, 3 Id. 667; Smith v. Snyder, 15 Id. 324; Prosser v. Woodward, 21 Id. 205; Yates v. Fassett, 5 Denio, 21; Pierce v. Van Dyke, 6 Hill, 613. See, also, Tiff. Justice’s Guide (4th ed.), 675; Boynton v. Page, 13 Wend. 425; Vose v. Hart, 12 Ill. 378; Conner v. Comstock, 17 Ind. 90; Hanford v. Obrecht, 38 Ill. 493.

Irrespective of the question of pleading, it is a rule of wide application that the defendant must set up some affirmative right upon his part to have the goods delivered to him, or a return will not be adjudged. Chambers v. Waters, 7 Cal. 390; Trotter v. Taylor, 5 Blackf. 431; Wright v. Mathews, 2 Id. 187; Powell v. Hinsdale, 5 Mass. 343; Douglass v. Garrett, 5 Wis. 85; Moulton v. Bird, 31 Me. 296; Ely v. Ehle, 3 N. Y. 510; Pratt v. Tucker, 67 Ill. 346; Coit v. Waples, 1 Minn. 134.

In some states, where the right of property may be tried under the general issue, it is held that a general verdict entitles the defendant to a judgment for the return of the property. Ford v. Ford, 3 Wis. 399; Sparks v. Heritage, 45 Ind. 66; Noble v. Epperly, 6 Id. 414.

In Steere v. Vanderberg, 90 Mich. 187, 189, where the defendant showed that he was in possession under a claim of title, and where no title whatever appeared iñ the plaintiffs, it was held that defendant was entitled to the value of the property (or to a return thereof) without showing affirmatively that he had title against all the world. In the language of the opinion,—

“They \i. e., the plaintiffs] failed to show on. this trial any title in themselves, or any right to possession, but sought to show that [one] Eiohards had a better title than defendant."

But when it appears affirmatively, from the findings of the jury, that the defendant has no title to the property, or right to continued possession, and that the plaintiff has title, there would seem to he no occasion for such a judgment, as was substantially held in Ellis v. Simpkins, 81 Mich. 10, which case was reversed because the court instructed the jury that the defendant could recover the value of the property if no demand was proved. The Court said that in such case the defendant would be entitled to nominal damages only, which is inconsistent with the theory that he could have a judgment for the return of the property replevied, had he not seen fit to waive it. See, also, Darling v. Tegler, 30 Mich. 54.

In the present case, it is said that we cannot assume that the plaintiffs had title, inasmuch as it does not affirmatively appear from the record. The record does not include the evidence. It does show that the plaintiffs' action was defeated upon some ground, not stated; but the justice distinctly certifies that he gave the defendants a judgment for the property (i. e., its value) “solely because no demand had been made upon them for it." If this means anything, it implies that but for this want of demand the plaintiffs must have recovered; and we think that, under such circumstances, we should not resort to technical rules to do a' manifest injustice, whereby the defendants are given the value of property, to the bare possession of which they claim no right as against the plaintiffs, except the fact that at the time the writ was issued'they had a possession which was merely lawful, and that such possession was lawful solely (i. e., only) because the plaintiffs had failed to make it unlawful by a seasonable demand. The effect of this would perhaps be to deprive the plaintiffs of all remedy, as, in case of a return of the property after a trial upon the merits, no writ of second deliverance is allowed. How. Stat. § 8350.

The judgment of the circuit court must be reversed, and one entered in favor of the defendants for nominal damages only. The plaintiffs will recover their costs in this Court and the circuit court.

Long and G-rant, JJ., concurred with Hooker, J.