Hesse v. Hargraves ( 1889 )

ORtost, J.

This is an action of replevin in which the plaintiff made affidavit, as the statute requires, that the property sought to be recovered “ had not been seized under an execution or attachment against his goods and chattels liable to execution.” The defendant answered that he took and detains the property as a deputy-sheriff on an execution issued on a judgment in an action wherein one A. E. Dunlap was plaintiff, and this plaintiff was defendant, as the property of the plaintiff, and that said goods and chattels were the property of the plaintiff and liable to execution.

On the trial in the county court, and on cross-examination of the plaintiff as a witness in his own behalf, he testified “ that the property was taken from him by the defendant, and that he said he would take the property on execution.” It was then conceded in open court “ that the property was taken on execution against the plaintiff, and that the defendant was a deputy-sheriff.” After some further testimony tending to show that the plaintiff was entitled to the possession of the property, and without showing that the same was exempt from execution, at the close of the plaintiff’s evidence the court granted a nonsuit on motion of the defendant.

The plaintiff’s testimony contradicted his affidavit, which was the foundation of his action. The statute (sec. 3732, R. S.) provides that such an action shall not be maintained, by a judgment defendant, except for property exempt from execution. See, also, Carney v. Doyle, 14 Wis. 270; Union L. Co. v. Tronson, 36 Wis. 126; Griffith v. Smith, 22 Wis. 646; Battis v. Hamlin, 22 Wis. 669; 1 Wait’s Pr. 723.

By the Court.— The judgment of the cotinty court is affirmed.