Waldman v. Broder

Baldwin, J., delivered the opinion of the Court

Terry, C. J., and Field, J., concurring.

We think there is no error in this record to the prejudice of the appellant; the jury having found a general verdict for the defendant in this action of replevin. The property, which had, under the previous proceedings, been taken from the defendants, was properly directed by the Court to be returned to the defendants. This right of return is not necessarily, or, perhaps, at all dependent upon any finding of the jury to that effect; but results as matter of right in the plaintiff, and a conclusion of law from the verdict for defendants. It is the right of the Court to state this legal conclusion as a portion of its judgment. The legal effect of a finding for the defendants on the question of the plaintiff’s right to the property, is to entitle the defendants, from, whom it was taken, to its restoration. Nor is there anything in the failure to give an alternative judgment for the value of the property. This omission might be complained of by defendants if they had shown the value; but it is no ground of complaint on the part of the plaintiff.

The question as to the ownership of the property was left to the jury, and they were properly instructed that if the plaintiff and Frank owned the property in partnership, or as joint-Cwners, the plaintiff could-not recover. It is clear that the plaintiff could not recover in replevin unless the title was in himself; and if the defendant, as sheriff, levied on the property while "it was the joint property of plaintiff and Frank, (against the latter of whom he had an execution,) this is a justification to him. He had a right to levy on it, and take it into .possession, for the purpose of subjecting it to sale. -It is not necessary, in this form of action, to inquire what rights the purchaser at sheriff’s sale would acquire by the purchase.

The judgment of the Court below is affirmed.