Morris v. Baker , 5 Wis. 389 ( 1856 )

By the Court,

Cole J.

Although our replevin act (chap. 119, B. S.), does not expressly provide that no action of replevin shall be prosecuted unless a bond is given by the plaintiff in pursuance of section 8; yet we are satisfied by tbe strongest implication, that such is tbe intention of tbe act. In- the form of the writ prescribed by section 7, the officer is commanded, 'if the plaintiff gives security as required by law, to prosecute his complaint and return the goods and chattels, if return thereof shall be adjudged, and to pay all sums of money recovered against him— to cause tbe goods and chattels to be replevied, and delivered to said plaintiff, and then to summon, &c. By section 8, after tbe sheriff has taken tbe property, tbe plaintiff is required to give a bond as therein specified ; when this has been done, tbe officer, Upon receipt of tbe. bond, is authorized to deliver possession of tbe property to tbe plaintiff, or to bis authorized agent. Section 9. Tbe obvious intent and object of these provisions are to insure to tbe person who contests tbe plaintiff’s claim, and out of whose possession the property is taken, all reasonable security for the proper prosecution of the suit, and for the return of the property, if it shall be so adjudged, or the value thereof, and damages for its caption and detention. The bond is a substitute for the pledges at common law: plegii de prosequendo, and plegii de retorno habendo. Bac. Abr. Replevin D. The officer is undoubtedly authorized to seize the property described in the writ for the purpose of securing it, and to hold it a reasonoble time for the plaintiff to prepare his bond. But if the plaintiff neglects or refuses to give the bond required, the officer should redeliver the property to the person from whose- possession he replevied it. To permit the officer, in default of such bond being given, to retain possession of the property until the litigation is terminated, would, in most cases, be productive of the most flagrant injustice. Suppose the plaintiff is entirely irresponsible, and is defeated in the action, who will compensate the the defendant forthe loss he has sustained in consequence of being deprived of the use of the property in the meantime; or perhaps for its unavoidable depreciation in being stored away, or shut up by the officer ? Suppose the property to be cattle, horses, or sométhing of the kind, which require constant care, and may be a source of constant expense; is the officer to take care of such property, feed it for nothing ? or, in the case supposed, of the irresponsibility of the plaintiff, must the defendant, in addition -to all -other damages sustained by him, pay these charges likewise ? We think these observations are sufficient to show that the construction given this statute by the counsel for the plaintiff in error, is unsound, and ought not to be adopted. We cannot' believe that the giving' the bond to the sheriff is a condition precedent merely to the delivering of the propert}r to the plaintiff; and that where the bond is not given, the property is to remain in the custody of the.officer until the suit is terminated.

The writ in this cause was issued on the 23d of February and made returnable on .the third Monday in April, 1855. On the 29th of March, the sheriff returned the writ, with his return indorsed thereon, to the effect that he had executed the samé, bj fairing into bis custody part of tbe property named in tbe writ, summoning tbe defendants in tbe action, and that tbe plaintiff bald not delivered to bim a bond on account of being absent: Tbe same day, declaration was filed, and a copy served upon tbe defendants. On the "30th, tbe defendants Hunt and Heatb pleaded tbe general issue, with notice of special matter.

On tbe 12tb of April, tbe defendant Baker moved to quash tbe writ and dismiss tbe suit and all proceedings therein, for tbe reason that no bond bad been given. After bearing tbe motion, and before tbe decision thereof, the plaintiff presented in open court, a bond, and asked leave to file it, but tbe court refused to grant leave, and ordered that a judgment of discontinuance be entered in tbe cause against tbe plaintiff; that tbe property be returned to tbe defendants; that they recover their damages, sustained by reason of tbe detention thereof; and that a writ of inquiry issue to assess tbe same.

' It is insisted, that tbe court erred in giving judgment of discontinuance, generally, upon tbe motion, since tbe defendants Heatb and Hunt bad pleaded to tbe action. ■ We are.of tbe opinion, however, that tbe court decided properly. We have already stated, that it was an essential pre-requisite to the prosecution of tbe. action, that tbe plaintiff prepare bis bond within a reasonable time after the officer bad seized and taken into bis possession, tbe property. We are now considering a case, where tbe property mentioned in tbe writ has been replevied by tbe officer. Sections 12 and 28, make provision for tbe trial of tbe cause, where the property has not been replevied and delivered to the plaintiff. That is not this case. ■ Here, tbe property was replev-ied, and tbe plaintiff, neglected to give tbe requisite bond until a motion bad been filed and argued, to discontinue upon that ground. . Two of tbe defendants bad pleaded, thus indicating a willingness, perhaps, to waive, as far as they were concerned, tbe irregularity of tbe plaintiff in not filing bis bond. But they could not, by pleading, conclude their co-defendant of bis right to take advantage of it. Tbe objection taken, went to the-writ and- very foundation of the-’ action. - That being tbe case, it' is difficult to comprehend bow tbe writ could be quashed and- tbe suit dismissed, as to one defendant, and still proceed as to the' other .defendants.- What would be the effect of the judgment of discontinuance upon the property ? The action of replevin is a proceeding partly in rem. Sharpe vs. Whittenhall, 3 Hill, 576. The object, purpose and effect of the writ are to take property from the possession of the defendant, and transfer it to the plaintiff, until the contest about the title is settled. So, ordinarily, where judgment of discontinuance is entered, the property, as in this case, is returned to the defendant: But if this motion1 had not been granted generally, wfiat would have become of the property'replevied Rom the defendants? Would it have, remained in the possession of the plaintiff or the officer, until the suit, as to Hunt and Heath, was terminated? If so, the. situation of the plaintiff Tvould be improved, perhaps, from the discontinuance of the suit, as. to Baker. Under the circumstances, and from the necessity of the caite, we think, that when the suit was discontinued as to one defendant, it had to be as to all.

' The counsel for the plaintiff in error has taken exceptions to the ruling of the Circuit Court, upon the execution of the writ of inquiry in open court, 'as to the'measure of damages. We are of the opinion that the rule laid down by the Circuit Court was quite as favorable for the plaintiff in error ás the facts of the case would warrant, and that he has no just ground of complaint. He insists that the defendants were not entitled to any damages, but only costs, because,- although the property had been replevied, it had -not been .delivered to the. plaintiff, and relies upon section 39, to sustain this position. That provision does not apply to.this case, since the property was replevied from the possession of the defendants, and removed from the hotel. The defendants were deprived' of the use of it for some weeks. And.it was perfectly right and proper that they should be paid for this use by receiving interest upon its value while it was thus out of their possession, as well -as damages for the depreciation .of the property, or injury done it by the plaintiff, and the necessary expense of placing the furniture, in its former position, fitted for use. • .

The- counsel for the defendants in error has questioned the soundness of this rule adopted by the Circuit Court, but as we do not understand him as asking for the reversal of the judgment, we do not feel called upon to enter upon a discussion of the points made by him upon this branch of the case. We have already intimated that the instructions of the Circuit Court as to the measure of damages, were quite as favorable to the plaintiff in error, as the facts of the oase would justify. See Sedg. on Damages, chaps. 20 and 22, and cases there cited.

The judgment of the Circuit' Court is affirmed.